Federal court judge finds anti-trans discrimination unconstitutional

by on July 6, 2010  •  In Employment law, ENDA, Transgender

U.S. District Judge Richard Story 90_vbeth has ruled in Glenn v. Brumby that the Georgia state legislative counsel's office acted unconstitutionally when it fired Vandy Beth Glenn from her job as an editor after learning that she would transition from her former identity as male. Glenn, who was a terrific witness at the ENDA hearing before the House Education and Labor Committee last September, is the most recent in what is becoming a long list of successful trans plaintiffs suing on sex discrimination grounds. Lambda Legal brought the case on her behalf.

The caveat in this case is that the court accepted the defendant's argument that the anticipated negative consequences of Glenn's use of the women's restroom (lawsuits by coworkers) was a rational basis for her firing. The standard of review in sex discrimination cases requires that the defendant show that its actions were substantially related to an important government interest. Because he found that speculation about reactions to bathroom use did not meet that standard, Judge Story granted summary judgment to Glenn on her sex discrimination claim. However, he denied summary judgment to her on her other ground for relief, which asserted an Equal Protection violation based on her medical condition. Medical condition claims require only a rational basis for governmental actions.

There was no evidence that the defendant's concern with restroom use was an actual reason for the decision to fire Glenn, rather than an argument offered after the fact, nor was there any evidence that Glenn had used the women's restroom or would have been likely to do so, since there were multiple single-occupancy bathrooms available near her office. Under the higher standard of review applicable to sex discrimination, these missing facts – plus the supervisor's admission that he decided to fire her because he felt that a biologically male person presenting as female would be "unnatural" – were fatal to the defense. The court distinguished this case from decisions in the Sixth and Tenth Circuits in which plaintiffs lost on the ground that employers feared that women co-workers would sue the employer if an MTF person were allowed access to the women's bathroom. In those cases, the Georgia judge said, there was evidence that bathroom use issues were the actual reasons for the firings.

The most distressing part of the Glenn decision was the court's reasoning that

Terminating an employee with male genitalia who intends to present as a woman and thus could use women's restrooms would further the purpose of avoiding lawsuits resulting from that use. Avoiding the costs of lawsuits, even meritless suits, is a rational legitimate government interest. Terminating an individual that could increase the prospects of such suits is rationally related to the goal of avoiding such suits.

What we see, therefore, is the development of a line of employment cases in which trans plaintiffs have essentially succeeded in establishing the legal principle that discrimination based on gender identity is a form of sex discrimination. However, even those courts may ultimately rule against the plaintiff if the defendant can demonstrate that it acted pursuant to what a judge may perceive as legitimate bathroom access issues.

It is starting to seem that it matters less and less whether job discrimination based on gender identity is dealt with under ENDA or Title VII. At the same time, however, the need to resolve the bathroom access problem through negotiated statutory language is becoming more important.  That is the sticking point that is holding up ENDA's progress in Congress and, as these cases demonstrate, it is also the issue on which advocates are most vulnerable under a sex discrimination approach.


2 Responses to Federal court judge finds anti-trans discrimination unconstitutional

  1. David B. Cruz July 7, 2010 at 3:33 PM

    Employers’ invocations of “undifferentiated fears” (City of Cleburne, Texas v. Cleburne Living Center, Inc., 473 U.S. 432 (1985)) about suits by third parties if trans people were to use a men’s room or women’s room in accordance with their gender identity/lived gender should be understood as “giving … effect,” “directly or indirectly,” to “[p]rivate biases,” which the Supreme Court held in Palmore v. Sidoti “the law cannot” do. 466 U.S. 429, 433 (1984).

    David B. Cruz
    Professor of Law
    University of Southern California Gould School of Law

  2. Nan Hunter July 7, 2010 at 9:07 PM

    Agree – such arguments should be understood that way. But most judges still regard them as rational concerns rather than as private biases. Yet another example of the need to reconstruct the meaning of what is reasonable -

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