Vandiver Elizabeth Glenn f.k.a. Glenn Morrison v. Sewell R. Brumby (Employment Discrimination Case)

BARKETT, CIRCUIT JUDGE

Sewell R. Brumby appeals from an adverse summary judgment in favor of Vandiver Elizabeth Glenn on her complaint seeking declaratory and injunctive relief pursuant to 42 U.S.C. 1983 for alleged violations of her rights under the Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution. Glenn claimed that Brumby fired her from her job as an editor in the Georgia General Assembly's Office of Legislative Counsel ("OLC") because of sex discrimination, thus violating the Equal Protection Clause. The district court granted summary judgment in Glenn's favor on this claim. Glenn also claimed that her constitutional rights were violated because Brumby terminated her employment due to her medical condition, known as Gender Identity Disorder ("GID"). The district court ruled against Glenn on this claim, granting summary judgment to Brumby. Brumby appeals the district court's sex-discrimination ruling, and Glenn cross-appeals the ruling on her medical condition claim. Vandiver Elizabeth Glenn was born a biological male. Since puberty, Glenn has felt that she is a woman, and in 2005, she was diagnosed with GID, a diagnosis listed in the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders.¹Starting in 2005, Glenn began to take steps to transition from male to female under the supervision of health care providers. This process included living as a woman outside of the workplace, which is a prerequisite to sex reassignment surgery. In October 2005, then known as Glenn Morrison and presenting as a man, Glenn was hired as an editor by the Georgia General Assembly's OLC. Sewell Brumby is the head of the OLC and is responsible for OLC personnel decisions, including the decision to fire Glenn.

In 2006, Glenn informed her direct supervisor, Beth Yinger, that she was a transsexual and was in the process of becoming a woman. On Halloween in 2006, when OLC employees were permitted to come to work wearing costumes, Glenn came to work presenting as a woman. When Brumby saw her, he told her that her appearance was not appropriate and asked her to leave the office. Brumby deemed her appearance inappropriate "[b]ecause he was a man dressed as a woman and made up as a woman." Brumby stated that "it's unsettling to think of someone dressed in women's clothing with male sexual organs inside that clothing," and that a male in women's clothing is "unnatural." Following this incident, Brumby met with Yinger to discuss Glenn's appearance on Halloween of 2006 and was informed by Yinger that Glenn intended to undergo a gender transition. In the fall of 2007, Glenn informed Yinger that she was ready to proceed with gender transition and would begin coming to work as a woman and was also changing her legal name. Yinger notified Brumby, who subsequently terminated Glenn because "Glenn's intended gender transition was inappropriate, that it would be disruptive, that some people would view it as a moral issue, and that it would make Glenn's coworkers uncomfortable." Glenn sued, alleging two claims of discrimination under the Equal Protection Clause. First, Glenn alleged that Brumby "discriminat[ed] against her because of her sex, including her female gender identity and her failure to conform to the sex stereotypes associated with the sex Defendant perceived her to be." Second, Glenn alleged that Brumby "discriminat[ed] against her because of her medical condition, GID" because "receiving necessary treatment for a medical condition is an integral component of living with such a condition, and blocking that treatment is a form of discrimination based on the underlying medical condition." Glenn and Brumby filed cross-motions for summary judgment. The District Court granted summary judgment to Glenn on her sex discrimination claim, and granted summary judgment to Brumby on Glenn's medical discrimination claim. Both sides timely appealed to this Court. We first address Glenn's sex discrimination claim.

I.Equal Protection and Sex Stereotyping

The question here is whether discriminating against someone on the basis of his or her gender non-conformity constitutes sex-based discrimination under the Equal Protection Clause. For the reasons discussed below, we hold that it does. A person is defined as transgender precisely because of the perception that his or her behavior transgresses gender stereotypes. "[T]he very acts that define transgender people as transgender are those that contradict stereotypes of gender-appropriate appearance and behavior." 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-nonconformity is sex discrimination, whether it's described as being on the basis of sex or gender.

All persons, whether transgender or not, are protected from discrimination on the basis of gender stereotype. For example, courts have held that plaintiffs cannot be discriminated against for wearing jewelry that was considered too effeminate, carrying a serving tray too gracefully, or taking too active a role in child-rearing. An individual cannot be punished because of his or her perceived gender-nonconformity. Because these protections are afforded to everyone, they cannot be denied to a transgender individual. The nature of the discrimination is the same; it may differ in degree but not in kind, and discrimination on this basis is a form of sex-based discrimination that is subject to heightened scrutiny under the Equal Protection Clause. Ever since the Supreme Court began to apply heightened scrutiny to sex-based classifications, its consistent purpose has been to eliminate discrimination on the basis of gender stereotypes.

We conclude that 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.

II.Glenn's Termination

We now turn to whether Glenn was fired on the basis of gender stereotyping. The first inquiry is whether Brumby acted on the basis of Glenn's gender-nonconformity.

In this case, Brumby testified at his deposition that he fired Glenn because he considered it "inappropriate" for her to appear at work dressed as a woman and that he found it "unsettling" and "unnatural" that Glenn would appear wearing women's clothing. Brumby testified that his decision to dismiss Glenn was based on his perception of Glenn as "a man dressed as a woman and made up as a woman," and Brumby admitted that his decision to fire Glenn was based on "the sheer fact of the transition." Brumby's testimony provides ample direct evidence to support the district court's conclusion that Brumby acted on the basis of Glenn's gender non-conformity. If this were a Title VII case, the analysis would end here. However, because Glenn's claim is based on the Equal Protection Clause, we must, under heightened scrutiny, consider whether Brumby succeeded in showing an "exceedingly persuasive justification."

On appeal, Brumby advances only one putative justification for Glenn's firing: his purported concern that other women might object to Glenn's restroom use. However, Brumby presented insufficient evidence to show that he was actually motivated by concern over litigation regarding Glenn's restroom use. To support the justification that he now argues, Brumby points to a single statement in his deposition where he referred to a speculative concern about lawsuits arising if Glenn used the women's restroom. The district court recognized that this single reference, based on speculation, was overwhelmingly contradicted by specific evidence of Brumby's intent, and we agree. Indeed, Brumby testified that he viewed the possibility of a lawsuit by a co-worker if Glenn were retained as unlikely and the record indicates that the OLC, where Glenn worked, had only single-occupancy restrooms. Brumby has advanced no other reason that could qualify as a governmental purpose, much less an "important" governmental purpose, and even less than that a "sufficiently important governmental purpose" that was achieved by firing Glenn because of her gender non-conformity. We, therefore, AFFIRM the judgment of the district court granting summary judgment in favor of Glenn on her sex-discrimination claim. In light of this decision, which provides Glenn with all the relief that she seeks, there is no need to address Glenn's cross-appeal.

Case Commentary

The 11th Circuit ruled that discrimination against someone who has a gender identity disorder amounts to sex discrimination.

*Case Questions*

1. Are you in agreement with the court's decision in this case? Explain.

2. Why is gender identity disorder covered under laws prohibiting sex discrimination, but sexual orientation discrimination is not? Explain.

3. Is there an ethical resolution to this case? Explain.