by Anne King
As Peter Dunne pointed out in his post last week, December 2011 has seen several significant milestones for LGBT rights, both in the US and internationally.
Count among those events the December 6 opinion by the Eleventh Circuit Court of Appeals in Glenn v. Brumby, which held that discriminating against someone on the basis of his or her gender non-conformity is sex discrimination under the Equal Protection Clause of the Constitution.
Vandiver Glenn was a state government employee fired after informing her supervisor she was transitioning from male to female. (She had been diagnosed with gender identity disorder and had started the process of transitioning several years previously.) The reason given for termination was that Glenn’s gender transition was “inappropriate,” “a moral issue,” and “would make coworkers uncomfortable.”
The court relied heavily on Price Waterhouse v. Cooper, which involved sex discrimination against a female employee because she was perceived as masculine; that is, she didn’t conform to sex stereotypes. Treating a transgender individual differently because he or she doesn’t conform to his or her biological sex is, similarly, discrimination based on sex, the Eleventh Circuit reasoned.
This wasn’t the first court to decide that gender-non-conformity discrimination is sex discrimination. But only one other federal court of appeal previously held that gender non-conformity discrimination violates equal protection – the Sixth Circuit in 2004.
Glenn is therefore a real victory for LGBT rights in the workplace, and although it’s an Equal Protection Clause case, the court signals that the general principle applies to Title VII as well.
And, Glenn is notable not only as a landmark for LGBT rights, but also as a relatively rare example of a federal appellate court applying equal protection sex discrimination analysis. These days, the Courts of Appeals don’t have much occasion to consider sex discrimination Equal Protection Clause claims – the era cementing heightened scrutiny for sex discrimination dates from the 1970s through the 1990s. The Supreme Court has only addressed the issue twice in the past 10 years or so, in Nguyen v. INS (2001) and Flores-Villar v. United States (2011) (in which the Court didn’t even issue an opinion).
But Glenn v. Brumby affirms that sex discrimination equal protection jurisprudence is still relevant – and still evolving – and that the Equal Protection Clause is an important protection for LGBT rights.