Equal Protection for Transgendered Employees? Analyzing the Court’s Call for More Than Rational Basis in the Glenn v. Brumby Decision

• Publication year: 2010

Georgia State University Law Review

Volume 28 . ,,

Article 11

Issue 4 Summer 2012

4-3-2013

Equal Protection for Transgendered Employees? Analyzing the Court's Call for More than Rational Basis in the Glenn v. Brumby Decision

Gwen Havlik

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Recommended Citation

Havlik, Gwen (2011) "Equal Protection for Transgendered Employees? Analyzing the Court's Call for More than Rational Basis in the Glenn v. Brumby Decision," Georgia State University Law Review: Vol. 28: Iss. 4, Article 11. Available at: http://digitalarchive.gsu.edu/gsulr/vol28/iss4/11

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EQUAL PROTECTION FOR TRANSGENDERED EMPLOYEES? ANALYZING THE COURT'S CALL FOR MORE THAN RATIONAL BASIS IN THE GLENN V. BRUMBY DECISION

Gwen Havlik*

Introduction

In studies conducted between 1996 and 2006, 20% to 57% of transgendered¹ respondents reported being discriminated against in the workplace, including being harassed, denied a promotion, being fired, or denied employment altogether.²

In October 2005, shortly after she was diagnosed with gender identity disorder, Vandiver Elizabeth Glenn, then known as Glenn Morrison, was hired by the Georgia General Assembly's Office of Legislative Counsel (OLC).³ Two years later, Ms. Glenn informed her supervisor of her intention to begin gender transition.⁴ After conducting research and confirming Ms. Glenn's intentions, OLC's Chief Legal Counsel, Sewell Brumby, informed Ms. Glenn she was being terminated, giving reasons ranging from the transition being "inappropriate" to "immoral and unnatural."⁵

* J.D. Candidate, 2012, Georgia State University College of Law. Thanks to Professor Mary Radford and the Law Review editors for their valuable insight and suggestions.

1. Transgender is "an umbrella term for people whose gender identity, expression, or behavior is different from that typically associated with their assigned sex at birth." M.V. Lee Badgett, et al., Bias in the Workplace: Consistent Evidence of Sexual Orientation and Gender Identity Discrimination 9 (2007). The definition of transgender includes those who identify themselves as "transsexual." Id. The terms "transgender" and "transsexual" will be used interchangeably throughout this Note.

2. Id. at 2. For example, a 2006 study conducted by the San Francisco Bay Guardian and the Transgender Law Center reported that 40% of transgendered survey respondents had been denied employment based on their transgender status, 24% reported being sexually harassed, and 23% complained of co-workers' persistent use of their old names; all in what "should be one of the most tolerant cities for transgender people in the United States." Id. at 7.

3. Glenn v. Brumby, 724 F. Supp. 2d 1284, 1290 (N.D. Ga. 2010), aff'd, 663 F.3d 1312 (11th Cir. 2011).

4. Id. As part of her treatment for gender identity disorder, and in the hopes of providing psychological relief, Ms. Glenn acted on her therapist's recommendation to commence the real life experience by living as a woman full time. Id.

5. After researching the issue, Brumby concluded that "some authority indicated terminating an employee for undergoing gender transition was illegal, but some authority indicated that such firings are

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While Title VII of the Civil Rights Act of 1964 prohibits discrimination "based on sex,"⁶ no federal law explicitly prohibits discrimination against transgendered employees.⁷ Ms. Glenn nonetheless sought to challenge her employer's discriminatory actions, and brought a claim not under Title VII,⁸ but under 42 U.S.C. § 1983 for violation of her right to equal protection under the Fourteenth Amendment of the United States Constitution.⁹ Ms. Glenn's complaint alleged, inter alia, that she "did not conform to Defendants' sex stereotypes regarding males because of her appearance and behavior . . . and was terminated for this reason."¹⁰ In granting Ms. Glenn's motion for summary judgment, United States District Judge Richard W. Story used a Title VII analogy to find the plaintiff stated her claim by using the sex stereotyping theory.¹¹ He also held that the State failed to meet its burden of showing the "exceedingly persuasive justification" needed to survive the heightened scrutiny of a gender based Equal Protection Clause claim.¹² Many federal courts have allowed the sex stereotyping

permissible." Id. at 1291. Other reasons given for her termination were that "gender transition was inappropriate, . . . it would be disruptive, . . . some people would view it as a moral issue, and that it would make Glenn's coworkers uncomfortable." Id. at 1292 (footnote omitted).

6. "It shall be an unlawful employment practice for an employer . . . to discriminate against any individual . . . because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2 (2006).

7. Glenn v. Brumby et. al., Lambda Legal, http://www.lambdalegal.org/in-court/cases/glenn-v-brumby-et-al.html (last visited Oct. 31, 2010) (providing a summary of the case Glenn. v. Brumby). Cole Thaler and Gregory Nevins of Lambda Legal represent plaintiff Vandiver Elizabeth Glenn. Glenn, 724

F. Supp. 2d at 1293.

8. It is unclear, based on the application of the 1991 amendments to the federal civil rights statute, whether employees of state elected officials are covered under Title VII. Jillian T. Weiss, Georgia Federal Court Rules for Trans Woman on Sex Discrimination Claim, Bilerico Project (July 7, 2010), http://www.bilerico.com/2010/07/georgia_federal_court_rules_for_trans_woman_on_sex.php. It is possible Ms. Glenn did not bring suit under Title VII in an effort to make a "crystal clear, open and shut" case without giving the defense a chance to "muddy the waters" by arguing the coverage point. Id.

9. U.S. Const. amend. XIV; 42 U.S.C. § 1983 (2006); Glenn v. Brumby, 724 F. Supp. 2d 1284, 1290 (N.D. Ga. 2010), affd, 663 F.3d 1312 (11th Cir. 2011).

10. Plaintiff also alleges she is a member of a particular and clearly identifiable group of people. Glenn, 724 F. Supp. 2d at 1293. Ms. Glenn's second claim alleges she was discriminated against by being prevented from undergoing medically necessary treatment for gender identity disorder. Id.

11 . See discussion infra Part I.

12. Glenn, 724 F. Supp. 2d at 1305; Arthur S. Leonard, Anti-Transgender Discrimination by State Government Employer Found Unconstitutional, Leonard Link, (July 6, 2010), http://newyorklawschool.typepad.com/leonardlink/2010/07/antitransgender-discrimination-by-state-government-employer-found-unconstitutional.html.

2012] EQUAL PROTECTION FOR TRANSGENDERED EMPLOYEES 1315

theory in claims brought by transgender plaintiffs in employment discrimination claims, as well as under other federal statutes,¹³ but such claims are not typically brought directly under the Equal Protection Clause.¹⁴

This Note seeks to analyze the logical but novel reasoning used by Judge Story to move a transgender discrimination claim from a rational basis to an intermediate scrutiny standard under an Equal Protection Clause claim.¹⁵ Part I explores the historical treatment of discrimination claims brought by transgendered individuals.¹⁶ Part II analyzes Judge Story's decision in Glenn v. Brumby, following the reasoning used in borrowing from Title VII precedent to reach his conclusion that the plaintiff did, in fact, state a claim of sex discrimination under the Equal Protection Clause.¹⁷ Part II also discusses decisions holding that transsexual employees are not entitled to protection under Title VII or the Equal Protection Clause.¹⁸ Part III proposes that when the United States Supreme Court is eventually faced with deciding a transgender employment discrimination claim, Judge Story's reasoning based on sex stereotyping should be extended to either, or both, Title VII and constitutional claims of discrimination brought by transgender employees.¹⁹

13. See discussion infra Part I. Courts have extended the sex stereotyping theory to claims under the Equal Credit Opportunity Act and the Gender Motivated Violence Act as well as for employment discrimination claims. Rosa v. Park W. Bank & Trust, 214 F.3d 213, 216 (1st Cir. 2000); Schwenk v. Hartford, 204 F.3d 1187, 1200-01 (9th Cir. 2000).

14. See Leonard, supra note 12 (noting Judge Story "ventur[ed] into new territory as he ruled that sexual stereotyping encountered by transsexuals in a governmental workplace can provide the basis for a constitutional sex discrimination claim").

15. JoAnna McNamara, Employment Discrimination and the Transsexual 2 (1996) (unpublished manuscript) (on file with the author) (noting that claims for equal protection for transsexuals are "difficult to uphold because the courts generally use a rational basis analysis"); see also discussion infra

Part I.D.

16. See discussion infra Part I. Part I includes an explanation of the Supreme Court's decision in Price Waterhouse v. Hopkins to extend sex discrimination claims to include sex stereotyping and the evolution of sex stereotype claims as they apply to transsexuals, as well as the treatment of transgender discrimination claims brought under the Equal Protection Clause. Id.

17. See discussion infra Part II.

18. See discussion infra Part II.D.

19. See discussion infra Part III. "To date, the Supreme Court has never decided a transgender workplace discrimination claim under either Title VII or the Constitution." Leonard, supra note 12.

1316 GEORGIA STATE UNIVERSITY LAW REVIEW [Vol. 28:4

I. History of Transgender Discrimination Claims

A. Transgender Claims Brought Prior to Price Waterhouse v. Hopkins

Beginning almost forty years ago when the...