11th Circuit Affirms Victory for Transgendered Georgia Employee

Just five days after it heard oral arguments in the case, the Eleventh Circuit Court of Appeals affirmed a victory for a transgendered woman who sued her former employer, the Georgia state legislature, for violating the Equal Protection Clause.  A three-judge panel unanimously affirmed a summary judgment for the plaintiff,  who was fired from the Georgia Office of Legislative Council for undergoing a gender transition.

In employment discrimination cases, direct evidence of a discriminatory motive is often hard to uncover.  In Glenn, the Eleventh Circuit said the testimony of Sewell Brumby, the plaintiff’s manager at the state legislature, “provides ample direct evidence to support the district court’s conclusion that Brumby acted on the basis of Glenn’s gender non-conformity.”  Brumby said he found it “unnatural” when Glenn dressed in women’s clothing.  “It’s unsettling to think of someone dressed in women’s clothing with male sexual organs inside that clothing,” he said.

Dear Mr. Brumby,

Please stop thinking about the sexual organs inside your employees’ clothing.

Sincerely,

A Georgia taxpayer

The state is likely not surprised by the court’s ruling.  The court noted that Sewell did not attempt to satisfy the heightened scrutiny applied to state decisions based on gender.  Rather, the state argued that transgendered persons are not protected by the Equal Protection Clause. (When faced with civil rights questions, some conservatives jurists have focused too much on the question of whether the plaintiff is among the protected class, as evidenced by the Supreme Court’s limiting of the definition of “disabled” in the ADA and Congress’ overturning of those decisions.)

The court rejected that argument and relied on a Supreme Court case upholding an employee’s sex discrimination claim based on allegations that she was fired for failing to conform to female stereotypes.  The court said, “An individual cannot be punished because of his or her perceived gender non-conformity . . . .  A person is defined as transgender precisely because of the perception that his or her behavior transgresses gender stereotypes.”

Georgia’s leaders should strongly renounce the state’s termination of this employee.  The state should serve as a model for other employers.  The state legislature makes laws, but this manager violated the Constitution when he fired an employee for failing to conform to gender stereotypes.  The testimony in the case revealed that Brumby discussed the issue with the leaders of the legislature before he fired Glenn. The lawsuit has exposed the prejudices that persist in Georgia’s halls of power.