Slam dunk victory for trans employment rights in 11th Circuit

by on December 6, 2011  •  In Uncategorized

Vandy-Beth-GlennRelying on the theory that "discrimination against a transgender individual because of her gender non-conformity is sex discrimination," the 11th Circuit panel of judges who heard oral argument less than a week ago ruled today in favor of Vandy Beth Glenn, who was fired from her job with the Georgia legislature because her boss thought that her MTF transition was "unnatural."

It's a stunning victory – in its speed, its scope and its unanimity. The opinion was written by Judge Rosemary Barkett on behalf of herself, senior status Judge Phyllis Kravitch, and Judge William Pryor.  Judge Pryor is considered among the most conservative members of the 11th Circuit. The fact that the panel was unanimous, including Judge Pryor, will go a long distance toward insulating it from a rehearing en banc (before all 11 active judges of the 11th Circuit). The defendant may seek review from the Supreme Court, but this decision creates no split among the Courts of Appeals that have ruled on this question, traditionally the primary basis for the Supreme Court to grant certiorari. So my bet is that even if cert is sought, it will be declined.

The decision's scope provides a broad and clear affirmation that existing sex discrimination law, under both the Equal Protection Clause and Title VII, prohibits  discrimination against trans employees based on their gender identity. The court further indicated that no particular evidence of gender stereotyping is necessary for the  plaintiff to prevail, contrary to the defendant's position that without specific evidence such as the use of gender epithets, a court could not find that he was relying on stereotypes. 

From the opinion:

A person is defined as transgender precisely because of the perception that his or her behavior transgresses gender stereotypes…There is thus a congruence between discriminating against transgender and transsexual individuals and discrimination on the basis of gender-based behavioral norms. Accordingly, discrimination against a transgender individual because of her gender non-conformity is sex discrimination, whether it's described as being on the basis of sex or gender…

…An individual cannot be punished because of his or her perceived gender non-conformity. Because these protections are afforded to everyone, they cannot be denied to a transgender individual…

[A] government agent violates the Equal Protection Clause's prohibition of sex-based discrimination when he or she fires a transgender or transsexual employee because of his or her gender non-conformity…

Mucho congratulations to Greg Nevins, Dru Levasseur, and other members of the Lambda Legal team who represented Glenn.


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