District Court Gives Transsexuals Course for Discrimination Suits

August 18, 2009 (PLANSPONSOR.com) - The U.S. District Court for the Northern District of Georgia has opened the door for transsexuals to pursue federal equal protection claims for discrimination based on sex.

In denying an employer’s motion to dismiss claims brought by an employee with Gender Identity Disorder (GID) who was fired after beginning the transition to a female, the court said Vandiver Elizabeth Glenn’s claims are not class-of-one equal protection claims, where Glenn alleges that she has been intentionally treated differently from others similarly situated and there is no rational basis for the difference in treatment.

Rather, the court said, her claims are classic equal protection based in that they are based on Glenn’s membership in identifiable groups: the group of individuals who have been diagnosed with GID and the group of individuals who fail to conform to sex stereotypes.

Equal Protection

The court noted that discrimination against those with serious medical conditions is class-based treatment subject to the Equal Protection Clause of the U.S. Constitution. While it is true that the employer’s decision to terminate Glenn’s employment did not pertain to her diagnosis of GID, it did pertain to Glenn’s behavior, dress, and comportment in the workplace, which were doctor-recommended treatments for her GID.

While the court admitted it has held as a matter of law that transsexuals as a group are not a protected class based on sex, it noted that this conclusion is not at odds with the Supreme Court’s interpretation of sex discrimination as defined in a case where it explained that the prohibition of discrimination based on “sex” bars gender discrimination, including discrimination based on sex stereotypes (see  Supreme Court Refuses to Hear Transsexual Case ).

“In other words, while “transsexuals” are not members of a protected class based on sex, those who do not conform to gender stereotypes are members of a protected class based on sex,” the court said in its opinion.

The opinion mentioned several courts that have held that adverse job action due to a failure to conform to an employer’s sex stereotypes constitutes impermissible sex discrimination, including the U.S. District Court for the District of Columbia which cleared the way for a transsexual job applicant to pursue an employment discrimination suit after not being hired for a federal job (see  Transexual Job Applicant Gets Green Light for Discrimination Suit ).

The Case

In 2005, Vandiver Elizabeth Glenn was hired by the Georgia General Assembly’s Office of Legislative Counsel for the position of Legislative Editor. According to the court document, at the time Glenn was hired and during the substantial duration of employment, the employer perceived Glenn to be male.

Glenn was determined to be male at birth, but later was diagnosed with GID, which has been recognized as a medical condition in the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (4th ed. Text Revision 2000), the court said. Glenn’s health care providers determined that gender transition was a medically necessary treatment for her GID.

In October 2006, Glenn informed her immediate superior that she was a transsexual planning to undergo gender transition from male to female in 2007. Yinger indicated that she did not foresee a problem with Glenn’s intentions.

On October 31, 2006, Glenn came to work in a feminine manner of dress and comportment and was sent home for being “inappropriately dressed.”

In September 2007, Glenn provided her supervisor with educational materials about gender transitions in the workplace, and the supervisor informed a more senior manager that Glenn intended to undergo transition from male to female and to dress and live as a woman in the workplace.

Glenn was fired because, in the view of the employer, gender transition surgery and presentation as a woman in the workplace would be seen as immoral, could not happen appropriately in the workplace, and would make other employees uncomfortable.

The decision in  here .