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

Judge to rule this week in Nikki Araguz case

Nikki Araguz

Transgender widow vows appeal if she loses case

JUAN A. LOZANO  |  Associated Press

WHARTON, Texas — The transgender widow of a Texas firefighter will likely learn next week whether his family’s request to nullify their marriage and strip her of any death benefits will be granted, a judge said Friday.

State District Judge Randy Clapp made the announcement after hearing arguments in a lawsuit filed by the family of firefighter Thomas Araguz III, who was killed while battling a blaze last year. The suit argues that his widow shouldn’t get any benefits because she was born a man and Texas doesn’t recognize same-sex marriage.

The widow, Nikki Araguz, said she had done everything medically and legally possible to show that she is female and was legally married under Texas law. She believes that she’s entitled to widow’s benefits.

“I believe the judge is going to rule in my favor,” Araguz said after the court hearing.

The lawsuit seeks control over death benefits and assets totaling more than $600,000, which the firefighter’s family wants to go to his two sons from a previous marriage. Voiding the marriage would prevent Nikki Araguz from receiving any insurance or death benefits or property the couple had together.

Thomas Araguz died while fighting a fire at an egg farm near Wharton, about 60 miles southwest of Houston, in July 2010. He was 30.

His mother, Simona Longoria, filed a lawsuit asking that her son’s marriage be voided. She and her family have said he learned of his wife’s gender history just prior to his death, and after he found out, he moved out of their home and planned to end the marriage.

But Nikki Araguz, 35, has insisted that her husband was aware she was born a man and that he fully supported her through the surgical process to become a woman. She underwent surgery two months after they were married in 2008.

Longoria’s attorney, Chad Ellis, argued that Texas law — specifically a 1999 appeals court ruling that stated chromosomes, not genitals, determine gender — supports his client’s efforts to void the marriage.

The ruling upheld a lower court’s decision that threw out a wrongful death lawsuit filed by a San Antonio woman, Christie Lee Cavazos Littleton, after her husband’s death. The court said that although Littleton had undergone a sex-change operation, she was actually a man, based on her original birth certificate, and therefore her marriage and wrongful death claim were invalid.

Ellis presented medical and school records that he said showed Nikki Araguz was born without female reproductive organs and that she presented herself as a male while growing up and going to school. He also said her birth certificate at the time of her marriage indicated she was a man.

“By law, two males cannot be married in this state,” Ellis told the judge.

Nikki Araguz, who was born in California, did not change her birth certificate to reflect she had become a female until after her husband’s death, said Edward Burwell, one of the attorneys for Thomas Araguz’s ex-wife, Heather Delgado, the mother of his two children.

But one of Nikki Araguz’s attorneys, Darrell Steidley, said that when his client got her marriage license, she presented the necessary legal documents to show she was a female. He also noted changes made in 2009 to the Texas Family Code that allowed people to present numerous alternatives to a birth certificate as the proof of identity needed to get a marriage license. That was an example, he argued, of the state trying to move away from the 1999 appeals court ruling.

The changes in 2009 allowed transgendered people to use proof of their sex change to get a marriage license. The Texas Legislature is currently considering a bill that would prohibit county and district clerks from using a court order recognizing a sex change as documentation to get married.

After the hearing, the firefighter’s family and attorneys for his ex-wife criticized plans by Nikki Araguz to star in a reality television dating show and implied she was only interested in money and fame that the case would bring her.

“That is absurd,” Nikki Araguz said in response. “I’m after my civil equality and the rights that I deserve as the wife of a fallen firefighter.”

If the judge rules against the firefighter’s family in their motion for a summary judgment, the case would then proceed to trial. Araguz said if the judge rules against her, she would appeal, all the way to the U.S. Supreme Court if necessary.

—  John Wright

Right-wing Liberty Institute issues action alert in support of transgender marriage ban

Sen. Tommy Williams, R-The Woodlands

Daniel Williams at Legislative Queery reports that the Texas Senate has again adjourned for the day without taking up a bill that would bar transgender people from marrying people of the opposite sex. However, The Woodlands Republican Tommy Williams’ SB 723 remains on the Senate’s calendar for Thursday. The bill, a response to the Nikki Araguz case, would remove a court order of sex change from the list of documents that can be used to obtain marriage licenses in Texas.

Daniel Williams also notes that today, the right-wing, Plano-based Liberty Institute issued an action alert calling on people to urge senators to support the anti-LGBT bill. Here’s an excerpt:

Some Gay, Lesbian, Bisexual, and Transgender advocates, want to thwart a Texas appeals court decision and force the state to recognize their gender (for marriage purposes) as something other than what was assigned at birth, to change their gender later on in life and force county clerks to recognize the changed gender. Such an outcome will create confusion for county clerks, for the courts and no doubt will be used by the GLBT community to undermine our marriage laws, which affirm traditional marriage, between one man and one woman.

Protect traditional marriage, support SB 723.

If you haven’t already contacted your senator and asked them to oppose this bill, this disgusting action alert from the Liberty Institute should provide plenty of motivation to do so. Email your senator by going here.

—  John Wright

ACTION ALERT: Transgender marriage ban back on Texas Senate calendar for Tuesday

Equality Texas sends along word that SB 723, by Sen. Tommy Williams, R-The Woodlands, has been placed back on the Texas Senate’s intent calendar for Tuesday. SB 723 would remove a court order of sex change from the list of documents that can be used to obtain marriage licenses. A response to the Nikki Araguz case, the bill would effectively bar transgender people from marrying people of the opposite sex in Texas. To contact your state senator and urge them to oppose SB 723, go here.

—  John Wright

IRONY: Texas lawmakers cite support for man-woman marriage as reason for banning it

Gov. Rick Perry

The mainstream media is finally picking up on efforts by the Texas Legislature to bar transgender people from marrying people of the opposite sex.

The Associated Press has a story today about SB 723 by Sen. Tommy Williams, R-The Woodlands, which would remove a court order of sex change from the list of documents that can be used to obtain marriage licenses. As we’ve reported, the bill was on the Senate’s intent calendar last week but has yet to be called up for a vote.

The irony of Williams’ bill, of course, is that if it becomes law, it will indicate that the Texas Legislature thinks it’s perfectly fine for transgender people to marry people of the same sex. And yet, Williams and others are citing their opposition to same-sex marriage as the reason for supporting the bill.

“The Texas Constitution,” Sen. Williams said told the AP, “clearly defines marriage between one man and one woman.”

“The governor has always believed and advocated that marriage is between a man and a woman,” said Mark Miner, a spokesman for Gov. Rick Perry.

As the story notes, most states allow transgender people to marry people of the opposite sex if they have a court order of sex change.

But you can’t have it both ways, which appears to be what conservative lawmakers in Texas want.

—  John Wright

Texas Senate didn’t take up transgender marriage ban today — but may take it up on Tuesday

The Texas Senate adjourned today without taking up SB 723, the bill by Sen. Tommy Williams, R-The Woodlands, that could prevent transgender people from marrying people of the opposite sex in Texas.

SB 723, apparently prompted by the Nikki Araguz case, would remove a “court order of sex change” from the list of identifying documents that can be used to obtain marriage licenses in Texas. And while transgender people could still theoretically use their driver’s licenses to obtain marriage licenses, advocates say the “legislative intent” of Williams’ bill would allow courts to declare those marriages invalid. Moreover, they say the bill could effectively lead to the state refusing to recognize the existence of transgender people for any purpose.

“If SB 723 gets a favorable vote it will enshrine Littleton vs Prange (1999) logic — you are what the doctor put on your birth certificate — into Texas State law,” writes Meghan Stabler, a transgender woman from Round Rock who serves on the Board of Directors for the Human Rights Campaign. “This will lay the foundation for the State of Texas to cease to recognize the transitioned status of transgender people.”

The bill was on the Senate’s intent calendar for today, meaning it could have come up for a vote if two-thirds of the Senate agreed to consider it. While the Senate didn’t get to the bill today, it remains on the intent calendar, and advocates are continuing to ask people to call Democratic senators and ask them to vote against SB 723. Republicans are one vote short of a two-thirds majority in the Senate, meaning if no Democrats vote to take up the bill it will die.

Contact info for Democratic senators is after the jump.

—  John Wright

Mich. school’s policy change presents opportunity to revisit transgender homecoming issue in Dallas

Andy Moreno

Remember Andy Moreno, the transgender girl who was denied a chance to run for homecoming queen at North Dallas High School?

Well, not surprisingly, it turns out that North Dallas isn’t the only school in the country that’s had to deal with this issue. But unlike NDHS or DISD, schools in other districts appear to be learning from their mistakes and drafting policies to avoid a repeat of the problem. For example, the NBC affiliate in Grand Rapids, Mich., reported Monday that students at Mona Shores High School will henceforth select a gender-neutral homecoming court:

The change comes about five months after a transgender student wasn’t allowed to run for homecoming king at Mona Shores.

Oakleigh Reed is registered at the school as a girl, but plans to undergo a sex change upon turning 18. Reed identifies as a boy, and students and teachers at Mona Shores recognize Oak that way, as well.

Reed was disqualified from running for homecoming king in September. Since last fall, school officials have been trying to figure out a way to avoid a similar situation from happening again.

The solution?

The juniors and seniors will vote on a gender-neutral prom court this spring. The policy will stand for future homecoming events, as well. There will be two juniors and two seniors on the courts; the sex of the students won’t be considered.

“I’m so glad that the rules have been changed,” Reed said in a news release from the ACLU. “All I wanted was a chance for all students to participate and be heard. Now, my classmates and I can just focus on having a great time at our school dance.”

We’ve contacted Jon Dahlander, a spokesman for the Dallas Independent School District, to find out whether there have been any further discussions about this issue since the Andy Moreno controversy in October. We’ve also left a message with Dinnah Escanilla, the principal at North Dallas High School who told Moreno she couldn’t run for queen because she was born a boy — a decision that the district stood behind.

We’ll let you know what we find out.


—  John Wright