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

Holder puts deportation of gay partners on hold

Josh Vandiver and Henry Velandia

Henry Velandia, a Venezuelan who is married to an American, had his deportation put on hold today by a judge in a New Jersey immigration court, according to the Associated Press. The decision in Velandia’s case came a day after U.S. Attorney General Eric Holder set aside a ruling in a similar case.

When Velandia’s visitor visa was about to expire, he applied for a green card through his employer but was denied. Although he and Josh Vandiver were legally married in Connecticut, the federal government refused to recognize their relationship under the Defense of Marriage Act.

Lavi Soloway, attorney for Velandia, told Dallas Voice in October that his client fears for his life if he has to return to Venezuela.

Soloway, who is a founder of the group Immigration Equality, says his No. 1 target is DOMA. Other activists are focused on passing the Dream Act and the Uniting American Families Act.

In the October immigration story, Dallas Voice reported that RafiQ Salleh was delayed in Singapore where he had gone to pick up the renewal of his two-year entrepreneur’s visa. He was back in Dallas by Christmas and his business survived thanks to the hard work of his partner and employees.

Dallas Voice will highlight several other immigration stories in the coming weeks. Some of the stories involve people trying to keep a same-sex spouse in the U.S. Another involves treatment by ICE that began with racial profiling but ended with brutal treatment based on sexual orientation.

—  David Taffet