July 7, 2010
Georgia District Judge Finds Georgia Legislature Violated Equal Protection Clause by Terminating a Transgendered Employee
In an extensive opinion, United States District Judge Richard Story of the Northern District of Georgia has granted summary judgment in favor of a former employee of the Georgia General Assembly on the basis of the Equal Protection Clause of the Fourteenth Amendment.
The plaintiff, Vandiver Elizabeth Glenn, formerly known as Glenn Morrison, was an editor at the Georgia General Assembly's Office of Legislative Counsel, but was terminated when she conveyed her intent to transition from a man to a woman.
The District Judge applied intermediate scrutiny, holding that "while transsexuals are not members of a protected class based on sex, those who do not conform to gender stereotypes are members of a protected class based on sex," and citing, after extensive analysis, to the Title VII case of Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) (Opinion at 30-31). The Judge therefore held that intermediate scrutiny applied:
Defendant must “demonstrate an ‘exceedingly persuasive justification’” for her
termination. Defendant may only satisfy the burden of intermediate scrutiny by “showing at least that the classification serves ‘important governmental objectives and that the discriminatory means employed’ are ‘substantially related to the achievement of those objectives.’”
Opinion at 36 (citations omitted). However, the Judge noted that the Defendant did not argue that his actions survived intermediate scrutiny, but based its entire argument on its contention that a sex-based classification analysis was not appropriate.
The Judge nevertheless analyzed the Defendant's arguments made, including its asserted interest that terminating the employee was "legitimate" to prevent future litigation, especially regarding restrooms. The Judge found this was not an exceedingly persuasive justification. The Judge also considered the Defendant's cursory claim that the Georgia OLC needed to have the confidence of the state legislators of Georgia, concluding:
To the extent that the record contains any evidence that legislators would lose “confidence” in the OLC, it is in the form of [ a ] statement that some legislators would believe that Glenn’s gender transition was immoral, unnatural, and “ultraliberal.” Even if this were the case, avoiding the anticipated negative reactions of others cannot serve as a sufficient basis for discrimination and does not constitute an important government interest.
Opinion at 42.
The importance of intermediate scrutiny - - - and the Defendant's failure to adequately argue the issue - - - is highlighted by the Judge's finding that the Plaintiff's "Gender Identity Disorder" claim merited only rational basis scrutiny and survived the constitutional challenge.
ConLawProfs looking for an example - - - or counter-example - - - of argument methodology in equal protection doctrine should find this Opinion especially interesting.
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