December 8, 2011 | by Dana Beyer
Constitutional foundation laid for trans equality

Co-authored by Jonathan Shurberg

On Dec. 6, 2011, a three-judge panel of the Eleventh Circuit U.S. Court of Appeals issued a decision in the case of Glenn v. Brumby, a case involving a transgender woman who was fired from her Georgia state government job after disclosing her intention to transition from male to female. Her boss justified the firing by stating, “It’s unsettling to think of someone dressed in women’s clothing with male sex organs inside that clothing” and further concluded that a male in women’s clothing is “unnatural.” The trial court granted relief to Glenn on the basis of sex discrimination under the 14th Amendment to the U.S. Constitution.

There was no reason to think, prior to the opinion being issued, that this decision would be a favorable one. The 11th Circuit is arguably the most conservative in the nation, and one of the three judges on the panel hearing the Glenn case was William H. Pryor, Jr., formerly the attorney general of Alabama. While in that position, Pryor had submitted an amicus brief in support of the State of Texas in Lawrence v. Texas, in which the Supreme Court eventually outlawed anti-sodomy and other anti-gay laws. So Judge Pryor was certainly no friend to the LGBT community.

The Dec. 6 opinion, written by Judge Rosemary Barkett, a 1993 Clinton appointee, not only affirmed the trial judge’s ruling in favor of Glenn, but did so in broad and sweeping fashion. The court began by noting that, “[a] person is defined as transgender precisely because of the perception that his or her behavior transgresses gender stereotypes. There is thus a congruence between discriminating against transgender and transsexual individuals and discrimination on the basis of gender-based behavioral norms.” After surveying a series of other federal court decisions that support this proposition, the Court in Glenn reached its conclusion:

“An individual cannot be punished because of his or her perceived gender

non-conformity. 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.”

These are sweeping words, clearly and concisely bringing the transgender community under the umbrella of basic equal protection principles.

In addition, the decision effectively undermines the “bathroom panic” argument of the opposition, stating that such fears “hypothesized or invented post hoc in response to litigation” are not genuine justifications.

Although the decision is clearly a positive and welcome one, it’s critical to recognize its limitations. As it is not a ruling based on Title 7 of the 1964 Civil Rights Act, it only applies in cases against government action — equal protection applies against the government, not against private actors such as businesses. However, Title 7 is frequently referenced in the opinion, which should ease the way forward on the next Title 7 case. There have also already been suggestions that state and local transgender protection laws are now either unnecessary or even illegal. We’re scratching our heads about that last one.

The fact is that, as welcome as the Glenn decision is, it sets a floor for basic equal protection coverage, not a ceiling, and even then, it only applies against government discrimination. In order to protect against private acts of discrimination, state and federal statutes banning such acts are necessary, and such statutes certainly may provide more protections than does the constitutional principle of equal protection, “filling in the details,” so to speak. In Maryland, we are poised to pursue such a statute at the state level, and the ringing endorsement of transgender equality under the Constitution set forth in the Glenn decision can only help speed the process of passing a fully inclusive law to protect transgender individuals from discrimination.

Dana Beyer, a retired physician and surgeon, is a trans advocate and executive director of Gender Rights Maryland. Jonathan Shurberg, a board member of Gender Rights Maryland and chair of its legislative committee, is a lawyer in private practice in Silver Spring. Reach them via genderrightsmaryland.org.

1 Comment
  • Caroline Temmermand

    There is no doubt that this case has huge implications not only for transgender individuals but for others, too, whose appearance might be conceived of as gender non-conforming. It will have implications beyond gender as well.

    Still, there is a problem here in that this ruling technically only applies to the 11th Circuit. And while it may influence courts in others jurisdictions, they are not required to follow this panel’s findings. Of course lawyers on one side fo case might use the decisions to try to influence the judges in their districts, we all know that finding another who would offer opposing arguments would not be a hard task.

    Having a clear law for gender non-discrimination is a start in all the other places where the 11th Circuit does not control should remain a goal for all of us.

    And lastly this ruling answers a question some have asked, “Why should I care about transgender rights?” Any lawyer will tell you that this ruling will have such broad implications for everyone in the US and it doesn’t matter if you are LGBTQ or not. So when you stand up for basic human rights for others, you are standing up for you and your loved ones.

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