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Topics In the News
Two Recent Court Victories
Posted by: Claude J. Summers on 12/07/11
Last updated on: 12/08/11
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With Lambda Legal's help, Vandy Beth Glenn won a significant victory for transgender rights.

Two recent victories in U.S. courts give hope that the federal judiciary may be prepared to protect the rights of glbtq citizens. A district court ruling from Ohio suggests that government employees are protected from sexual orientation discrimination, while a ruling from the U.S. Court of Appeals for the 11th Circuit upholds the equal protection rights of transgender employees.

As court watchers wait anxiously for rulings in the heavily publicized Proposition 8 and Defense of Marriage Act (DOMA) cases, two recent rulings in federal courts remind us that the quest for equal rights encompasses more than marriage equality. These rulings about employment discrimination also suggest that even conservative courts may be prepared to enforce equal rights even in the absence of statutory protections.

On December 6, 2011, the Eleventh Circuit Court of Appeals in Atlanta upheld a lower court ruling that the Georgia General Assembly discriminated against Vandy Beth Glenn, a transgender woman who was fired from her job as Legislative Editor after she told her supervisor that she planned to transition from male to female.

In a forceful opinion authored by Judge Rosemary Barkett for a unanimous three-judge panel, which included one of the most conservative judges on the federal bench, Judge William Pryor, the Court declared, "An individual cannot be punished because of his or her perceived gender-nonconformity. Because these protections are afforded to everyone, they cannot be denied to a transgender individual. . . . A person is defined as transgender precisely because of the perception that his or her behavior transgresses gender stereotypes."

The decision states unequivocally: "We conclude that a government agent violates the Equal Protection Clause's prohibition on sex-based discrimination when he or she fires a transgender or transsexual employee because of his or her gender non-conformity."

The victory is important because it is the first ruling on transgender rights from the Eleventh Circuit, considered one of the most conservative circuits. The ruling brings the Eleventh Circuit in line with other circuits in applying to transgender individuals a seminal U.S. Supreme Court ruling that said that gender non-conformity is included in the prohibition of discrimination on the basis of sex.

The decision strongly affirms that existing sex discrimination law, under both the Equal Protection Clause and Title VII, prohibits discrimination against transgender employees based on their gender identity.

The plaintiff in the case, Vandy Beth Glenn, worked for two years in the General Assembly's Office of Legislative Counsel as an editor and proofreader. In 2007, Glenn informed her immediate supervisor, Beth Yinger, that she planned to transition from male to female, and showed Yinger photographs of herself in professional female attire. Yinger passed the information on to her boss, the General Assembly's Legislative Counsel, Sewell Brumby.

After confirming that Glenn intended to transition, Brumby fired her. Brumby, who described Glenn's sex change as "immoral" and "disturbing," conceded that her "intended feminine appearance" contributed to her termination.

The other case led to a six-figure settlement for Shari Hutchinson, an Ohio state government worker who was discriminated against because of her sexual orientation.

Hutchinson worked as a support officer in the Child Support Enforcement Agency for Cuyahoga County, Ohio. Despite high scores on standardized tests, her Executive MBA, and two decades of work experience in the private sector, Hutchinson was repeatedly passed over for promotions after coworkers found out that she is a lesbian.

Hutchinson's supervisors failed to give her an annual review for five consecutive years. Once she learned that straight coworkers were being promoted to more than a dozen positions for which she qualified, and that office mates were spreading rumors about her, she decided to sue.

The state alleged that "all of Hutchinson's claims must fail because sexual orientation is not a protected class, and thus does not merit the constitutional protection, under the Equal Protection Clause, that Hutchinson seeks." However, U.S. District Judge James W. Gwin rejected that argument.

He wrote: "Simply because Title VII does not include sexual orientation as a statutorily protected class does not . . . automatically remove all constitutional protection where a plaintiff employee claims equal protection violations based on her membership in that class."

Upon this ruling, the state offered a settlement to Hutchinson.

Judge Gwin's ruling is consistent with other rulings that have held that public employers cannot discriminate on the basis of sexual orientation. Public employees, even in states that promote anti-gay policies, have more protection under the law than many of them think they do.

Hutchinson was able to sue on the basis of equal protection only because she worked for a public agency. Had she worked in the private sector, she probably would have had no basis to pursue her suit, since Ohio laws do not prohibit discrimination on the basis of sexual orientation.

That is why, despite the victory in the Hutchinson case, the proposed federal Employment Non-Discrimination Act (ENDA) is sorely needed.

Similarly, although the victory in the Glenn case indicates that transgender employees are protected from discrimination on the basis of sex, ENDA is needed to reenforce that protection.

As Gregory R. Nevins, the attorney who argued the Glenn case on behalf of Lambda Legal Defense and Education Fund, has observed, "The law is on our side, but everyone shouldn't need a lawyer to help them fight workplace discrimination. Congress must pass the Employment Nondiscrimination Act (ENDA) because we still need a federal law to tell employers unequivocally that discrimination against LGBT employees in the workplace is illegal. We are proud of Vandy Beth for standing up for her rights--her courage has helped clear the path for others."

Here is a link to the decision in the Hutchinson case: kecv4LqAY....

Here is a link to the decision in the Hutchinson case: glenn-v-brumby-et-al.

Here, Vandy Beth Glenn speaks about her case:

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