Appeals court rules in favor of fired transgender woman

Conservative 11th Circuit panel overturns trial court decision, says firing violated her right to equal protection

Lisa Keen  |  Keen News Service
lisakeen@me.com

A three-judge panel of the conservative 11th Circuit U.S. Supreme Court of Appeals on Tuesday, Dec. 6, ruled in favor of an employee of the Georgia General Assembly who was fired after telling a supervisor that she was undergoing male-to-female sex change treatment.

The supervisor, Sewell Brumby, told the employee, then known as Glenn Morrison, that the gender transition would be “disruptive” to the workplace, that it would make some co-workers “uncomfortable” and that “some people would view it as a moral issue.”

The employee, now known as Vandiver Elizabeth Glenn, filed suit with the aid of Lambda Legal Defense saying the firing violated Glenn’s constitutional right to equal protection.

The firing, argued Lambda, was both discrimination based on sex and based on a medical condition. A district court ruled for the supervisor.

But the panel said the equal protection clause of the U.S. Constitution “requires the state to treat all persons similarly situated alike or, conversely, to avoid all classifications that are ‘arbitrary or irrational’ and those that reflect ‘a bare … desire to harm a politically unpopular group.’

“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,” said the panel, in Glenn v. Sewell Brumby. “… we hold that it does.”

Those reasons included a 1989 decision in Price Waterhouse v. Hopkins in which the U.S. Supreme Court ruled that it was sex discrimination for a law firm to deny a promotion to a female lawyer because she was perceived as “macho.”

“All persons, whether transgender or not, are protected from discrimination on the basis of gender stereotype,” said the panel. “… 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.”

The panel took note that supervisor Brumby had expressed concern that other female employees at the General Assembly “might object” to Glenn’s use of the women’s restroom. But it said Brumby presented “insufficient evidence” to show this was the deciding motivation in firing Glenn.

© 2011 by Keen News Service. All rights reserved

This article appeared in the Dallas Voice print edition December 9, 2011.

—  Kevin Thomas

What’s Shakin’ – People Empowering People happy hour, Chaz Bono takes on the National Enquirer

1. People Empowering People is a collaboration between The Men’s Group, a social group for African-American gay, bisexual, and same gender loving men, and TMG One Voice, The Men’s Group’s co-ed counterpart.  PEP’s monthly happy hour tonight at F Bar (202 Tuam) provides a casual social setting open to all regardless of ethnic background, sexual orientation or gender identity and expression and an opportunity to mix and mingle with the fabulous men and women of both organizations.  The festivities kick off at 6 pm.

2. Joe My God has a copy of the Cease and Desist letter sent by lawyers for Chaz Bono to the National Enquirer. Seems the tabloid ran a story in this week’s issue claiming that Bono’s gender transition has shortened his life expectancy to 4 years.  The Enquirer article quotes the opinion of Dr. Patrick Wanis, identified as a medical doctor specializing in transgender health issues.  The problem?  According to Bono’s lawyers not only is Wanis not an expert on trans health issues, he’s not a medical doctor.

3. Today is the last day to early vote in the Houston Municipal election, but if you miss this opportunity you can still cast your ballot at your precinct voting location on Nov 8. A list of all early voting locations and sample ballots  are available at harrisvotes.org.

—  admin

Is it OK to eat at Cracker Barrel?

Cracker Barrel, which has long ranked right up there with ExxonMobil Corp. on the list of well-known businesses that are considered anti-gay, improved its score on this year’s Corporate Equality Index by 40 points, from a 15 to a 55. Tennessee-based Cracker Barrel is cited in the 2011 CEI report, released Monday by the Human Rights Campaign, as one of 12 companies that increased their score by more than 30 points:

“Cracker Barrel Old Country Store Inc., once in the news for delivering pink slips justified by ‘The employee is gay,’ has implemented a non-discrimination policy and diversity training that includes sexual orientation and has even gone as far as to provide a cash grant to the Tennessee Equality Project,” according to HRC.

If you’ll remember, Cracker Barrel’s anti-gay history goes back at least as far as 1991, when the company instituted a policy requiring employees to display “normal heterosexual values which have been the foundation of families in our society.” From Wikipedia:

The company refused to change their policy in the face of protest demonstrations by gay rights groups. After ten years of proposals by the New York City Employees Retirement System, a major shareholder, the company’s shareholders voted 58 percent in 2002 in favor of rescinding the policy. The board of directors added sexual orientation to the company’s nondiscrimination policy.[3]

The Tennessee Equality Project, the recipient of Cracker Barrel’s donation, is applauding the company’s improved score on its website, going so far as to print “Equality — Now Being Served” under a Cracker Barrel logo.

Well, not quite.

Unlike 76 percent of companies rated in the CEI, Cracker Barrel still doesn’t prohibit discrimination based on gender identity; unlike 79 percent of companies in the CEI, Cracker Barrel still doesn’t have written gender transition guidelines and/or cover gender identity as a topic in diversity training; and unlike a whopping 95 percent of companies in the CEI, Cracker Barrel still doesn’t offer domestic partner health coverage.

In short, as tasty as it may sound, we’re not quite ready to order up an Apple Steusel French Toast Breakfast at one of Cracker Barrel’s eight locations within 50 miles of Dallas Voice’s zip code.

—  John Wright