December 7, 2011 | by Chris Johnson
Court ruling in trans case hailed as ‘hugely important’

Vandy Beth Glenn (Photo courtesy Human Rights Campaign)

LGBT advocates are hailing a federal appellate court ruling as a significant win for transgender rights and a means to provide recourse to others who face discrimination in the workplace on the basis of sexual orientation and gender identity.

On Tuesday, the U.S. Eleventh Circuit Court of Appeals upheld a lower court decision that the Georgia Legislature had unlawfully discriminated against Vandy Beth Glenn for firing her as bill proofreader in 2007 after she informed supervisors she intended to transition from male to female.

“An individual cannot be punished because of his or her perceived gender-nonconformity,” the court decision states. “Because these protections are afforded to everyone, they cannot be denied to a transgender individual.”

Judge Rosemary Barkett, writing for the unanimous three-judge panel, which included Judge William Pryor and Senior Judge Phyllis Kravitch, determined the General Assembly’s Legislative Counsel, Sewell Brumby, violated Glenn’s rights under the Equal Protection Clause.

Lambda Legal had filed the case, known as Glenn v. Brumby, on behalf of Glenn in July 2008. In 2010, a district court had ruled previously in Glenn’s favor.

The court ruled in favor of Glenn even though no federal law is in place that specifically protects transgender people against discrimination in the workplace.

LGBT advocates see the ruling as significant because it could help make the case to bar discrimination against trans people in other situations.

Nan Hunter, a lesbian law professor at Georgetown University, said the decision advances other court rulings that have determined discrimination based on gender non-conformity amounts to sex discrimination by applying the potential protections to more people.

“It makes it extend beyond the more narrow definition of gender identity,” Hunter said. “I think it applies more broadly than to persons who have undergone surgery or hormonal treatment. That’s my sense of how the decision can be used. It is not explicit in the decision but the court used gender non-conformity, and the phrase gender-based behavioral norms, and I think that’s a very important development.”

Hunter said the ruling could also have an impact on gay, lesbian and bisexual people seeking recourse if they’ve experienced discrimination on the basis of sexual orientation — although the decision makes no explicit reference to these individuals.

“There’s no category of persons who can be excluded from protection based on that principle,” Hunter said. “So, if you had a case in which the trigger for discrimination based on gender non-comformity was sexual orientation rather than a transgender status, then, yes, I think this case could be applied, and should be applied.”

The ruling in favor of transgender protections in the workplace is also notable because the Eleventh Circuit is known for its conservative opinions. One of the judges, Pryor, was appointed by President George W. Bush and among the judicial nominees that Senate Democrats attempted to filibuster — and progressive groups railed against — because they said he was unfit to serve on the bench.

Mara Keisling, executive director of the National Center for Transgender Equality, called the decision “hugely important” because of the level of the Eleventh Circuit and the background of the judges who issued the ruling.

“It’s the highest court that’s decided something like this, it’s a conservative circuit and it’s going to be a message to employment attorneys to tell their clients that you can’t discriminate against trans people just because they’re trans people,” Keisling said.

Additionally, Hunter said the ruling could have also political implications that could enable Congress, state and local governments and the White House to move forward with LGBT non-discrimination protections.

Advocates have been pushing passage of the Employment Non-Discrimination Act in Congress, which would prohibit job bias against LGBT people in the public and private workforce. At the same time, President Obama is facing calls to issue an executive order barring federal dollars from going to contractors that don’t have non-discrimination protections for LGBT workers.

“If we want to clarify and elaborate on how gender identity discrimination should be prohibited, we’re not taking any controversial step here,” Hunter said. “We’re just sort of filling in the details. That, I think, will make the achievement of explicit gender identity protection more likely.”

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson attends the daily White House press briefings and is a member of the White House Correspondents' Association. Follow Chris

4 Comments
  • I remember some of us arguing during the ENDA debacle of 2007 that “gender expression” was more critical to the gay community than the trans community, and, therefore, an inclusive ENDA should be aggressively supported by not only the trans but the gay community as well. Lambda joined in at the time, though there was considerably more blowback than I had expected.

    Well, Lambda took that reasoning to the South and it looks like the justices in Alabama, Georgia and Florida were paying better attention than many of our friends in the blue states.

    And “bathroom panic” does not trump the U.S. Constitution.

    Who could ever have imagined this?

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