Glenn v. Brumby

• Decision Date: 06 December 2011
• Docket Number: Nos. 10–14833,10–15015.,s. 10–14833
• Citation: 113 Fair Empl.Prac.Cas. (BNA) 1543,95 Empl. Prac. Dec. P 44349,663 F.3d 1312,23 Fla. L. Weekly Fed. C 611
• Parties: Vandiver Elizabeth GLENN, f.k.a. Glenn Morrison, Plaintiff–Appellee, v. Sewell R. BRUMBY, Defendant–Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

113 Fair Empl.Prac.Cas. (BNA) 1543

23 Fla. L. Weekly Fed. C 611

663 F.3d 1312

95 Empl. Prac. Dec. P 44,349

Vandiver Elizabeth GLENN, f.k.a. Glenn Morrison, Plaintiff–Appellee,

v.Sewell R. BRUMBY, Defendant–Appellant.

Nos. 10–14833

10–15015.

United States Court of Appeals, Eleventh Circuit.

Dec. 6, 2011.

Gregory R. Nevins, Cole Thaler, Lambda Legal Defense & Educ. Fund, Inc., Atlanta, GA, for Plaintiffs–Appellees.

Richard Neal Sheinis, Nichole Lee Hair, Hall, Booth, Smith & Slover, PC, Atlanta, GA, for Defendant–Appellant.

Appeals from the United States District Court for the Northern District of Georgia.

Before BARKETT, PRYOR and KRAVITCH, Circuit Judges.

BARKETT, Circuit Judge:

Sewell R. Brumby appeals from an adverse summary judgment in favor of Vandiver Elizabeth Glenn on her complaint seeking declaratory and injunctive relief pursuant to 42 U.S.C. § 1983 for alleged violations of her rights under the Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution. Glenn claimed that Brumby fired her from her job as an editor in the Georgia General Assembly's Office of Legislative Counsel (“OLC”) because of sex discrimination, thus violating the Equal Protection Clause. The district court granted summary judgment in Glenn's favor on this claim.

Glenn also claimed that her constitutional rights were violated because Brumby terminated her employment due to her medical condition, known as Gender Identity Disorder (“GID”). The district court ruled against Glenn on this claim, granting summary judgment to Brumby. Brumby appeals the district court's sex-discrimination ruling, and Glenn cross-appeals the ruling on her medical condition claim.

Vandiver Elizabeth Glenn was born a biological male. Since puberty, Glenn has felt that she is a woman, and in 2005, she was diagnosed with GID, a diagnosis listed in the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders.¹

Starting in 2005, Glenn began to take steps to transition from male to female under the supervision of health care providers. This process included living as a woman outside of the workplace, which is a prerequisite to sex reassignment surgery. In October 2005, then known as Glenn Morrison and presenting as a man, Glenn was hired as an editor by the Georgia General Assembly's OLC. Sewell Brumby is the head of the OLC and is responsible for OLC personnel decisions, including the decision to fire Glenn.

In 2006, Glenn informed her direct supervisor, Beth Yinger, that she was a transsexual and was in the process of becoming a woman. On Halloween in 2006, when OLC employees were permitted to come to work wearing costumes, Glenn came to work presenting as a woman. When Brumby saw her, he told her that her appearance was not appropriate and asked her to leave the office. Brumby deemed her appearance inappropriate “[b]ecause he was a man dressed as a woman and made up as a woman.” Brumby stated that “it's unsettling to think of someone dressed in women's clothing with male sexual organs inside that clothing,” and that a male in women's clothing is “unnatural.” Following this incident, Brumby met with Yinger to discuss Glenn's appearance on Halloween of 2006 and was informed by Yinger that Glenn intended to undergo a gender transition.

In the fall of 2007, Glenn informed Yinger that she was ready to proceed with gender transition and would begin coming to work as a woman and was also changing her legal name. Yinger notified Brumby, who subsequently terminated Glenn because “Glenn's intended gender transition was inappropriate, that it would be disruptive, that some people would view it as a moral issue, and that it would make Glenn's coworkers uncomfortable.”

Glenn sued, alleging two claims of discrimination under the Equal Protection Clause. First, Glenn alleged that Brumby “discriminat[ed] against her because of her sex, including her female gender identity and her failure to conform to the sex stereotypes associated with the sex Defendant[ ] perceived her to be.” Second, Glenn alleged that Brumby “discriminat[ed] against her because of her medical condition, GID[,]” because “[r]eceiving necessary treatment for a medical condition is an integral component of living with such a condition, and blocking that treatment is a form of discrimination based on the underlying medical condition.”

Glenn and Brumby filed cross-motions for summary judgment. The District Court granted summary judgment to Glenn on her sex discrimination claim, and granted summary judgment to Brumby on Glenn's medical discrimination claim. Both sides timely appealed to this Court. We first address Glenn's sex discrimination claim.

I. Equal Protection and Sex Stereotyping

In any § 1983 action, a court must determine “whether the plaintiff has been deprived of a right ‘secured by the Constitution and laws' ” of the United States.² Baker v. McCollan, 443 U.S. 137, 140, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979) (quoting 42 U.S.C. § 1983). Here, the question is whether Glenn's termination violated the Equal Protection Clause of the Fourteenth Amendment.³

The Equal Protection Clause 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.” City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 446–47, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985) (internal quotation marks omitted). States are presumed to act lawfully, and therefore state action is generally upheld if it is rationally related to a legitimate governmental purpose. Id. at 440, 105 S.Ct. 3249. However, more than a rational basis is required in certain circumstances. In describing generally the contours of the Equal Protection Clause, the Supreme Court noted its application to this issue, referencing both gender and sex, using the terms interchangeably:

Legislative classifications based on gender also call for a heightened standard of review. That factor generally provides no sensible ground for differential treatment. [W]hat differentiates sex from such nonsuspect statuses as intelligence or physical disability ... is that the sex characteristic frequently bears no relation to ability to perform or contribute to society. Rather than resting on meaningful considerations, statutes distributing benefits and burdens between the sexes in different ways very likely reflect outmoded notions of the relative capabilities of men and women. A gender classification fails unless it is substantially related to a sufficiently important governmental interest.

Id. at 440–41, 105 S.Ct. 3249 (internal quotation marks and citations omitted, brackets in original). In United States v. Virginia, the Supreme Court reaffirmed its prior holdings that sex-based discrimination is subject to intermediate scrutiny⁴ under the Equal Protection Clause. 518 U.S. 515, 555, 116 S.Ct. 2264, 135 L.Ed.2d 735 (1996) (internal quotation marks omitted). This standard requires the government to show that its “gender classification ... is substantially related to a sufficiently important government interest.” Cleburne, 473 U.S. at 441, 105 S.Ct. 3249. Moreover, this test requires a “genuine” justification, not one that is “hypothesized or invented post hoc in response to litigation.” Virginia, 518 U.S. at 533, 116 S.Ct. 2264. In Virginia, the state's policy of excluding women from the Virginia Military Institute failed this test because the state could not rely on generalizations about different aptitudes of males and females to support the exclusion of women. Id. at 542, 116 S.Ct. 2264. “State actors controlling gates to opportunity, we have instructed, may not exclude qualified individuals based on ‘fixed notions concerning the roles and abilities of males and females.’ ” Id. at 541, 116 S.Ct. 2264 (quoting Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 725, 102 S.Ct. 3331, 73 L.Ed.2d 1090 (1982)).

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. For the reasons discussed below, we hold that it does.

In Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989), the Supreme Court held that discrimination on the basis of gender stereotype is sex-based discrimination. In that case, the Court considered allegations that a senior manager at Price Waterhouse was denied partnership in the firm because she was considered “macho,” and “overcompensated for being a woman.” Id. at 235, 109 S.Ct. 1775. Six members of the Supreme Court agreed that such comments were indicative of gender discrimination and held that Title VII barred not just discrimination because of biological sex, but also gender stereotyping—failing to act and appear according to expectations defined by gender. Id. at 250–51, 109 S.Ct. 1775 (plurality opinion); id. at 258–61, 109 S.Ct. 1775 (White, J., concurring); id. at 272–73, 109 S.Ct. 1775 (O'Connor, J., concurring). The Court noted that “[a]s for the legal relevance of sex stereotyping, we are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotypes associated with their group....” Id. at 251, 109 S.Ct. 1775.

A person is defined as transgender precisely because of the perception that his or her behavior transgresses gender stereotypes. “[T]he very acts that define transgender people as transgender are those that contradict stereotypes of gender-appropriate appearance and behavior.” Ilona M. Turner, Sex Stereotyping Per Se: Transgender Employees and Title VII, 95 Cal. L. Rev. 561, 563 (2007); see also Taylor Flinn, Transforming the Debate: Why We Need to Include Transgender Rights in the Struggles for Sex and Sexual Orientation Equality, 101 Colum. L.Rev. 392, 392 (2001) (defining transgender persons as those whose ...