Thursday, July 8, 2010
The District Court for the Northern District of Georgia held late last week that when the Georgia General Assembly fired a Legislative Editor because she was going to transition from male to female, it discriminated against her on the basis of nonconformity to sex stereotypes in violation of the Equal Protection Clause. The case, Glenn v. Brumby, is available here via Lambda Legal, which represented Vandy Beth Glenn, the plaintiff. The General Assembly's legislative Counsel, Brumby, had terminated Glenn and told her that the termination was because her transition would be disruptive because some people, including some legislators would view it as immoral and would lose confidence in the Office of Legal Counsel for the General Assembly, and that it would make Glenn's coworkers uncomfortable.
On cross-motions for summary judgment, the court ruled in favor of Glenn. The court engaged in a very thorough analysis of the conflicting authority on gender identity and gender transition cases, declining to follow cases that found no equal protection violation before the Supreme Court recognized in Price Waterhouse v. Hopkins that penalizing an employee for failing to conform to sex stereotypes was sex discrimination. The court also distinguished between status and conduct: discrimination against a person because of transsexual identity and discrimination against a person who does not act in conformity to gender stereotypes. Transsexuals identity is not a protected status under the Equal Protection Clause, but sex is. Here, Glenn did not simply identify as transsexual, she told her employer that she would transition genders and begin dressing and acting in ways that conform to stereotypes of women's behavior. It was the nonconforming behavior that Brumby identified as the cause of her termination. With sex as the protected class, the court applied intermediate scrutiny and found that "avoiding the anticipated negative reactions of others cannot serve as a sufficient basis for discrimination and does not constitute an important government interest." There was no evidence that anyone other than Brumby had a negative reaction, and some evidence to show that other employees were reacting neutrally or positively.
The court rejected Glenn's second legal theory--that discrimination on the basis of medical condition violated the Equal Protection Clause. Glenn had been diagnosed with Gender Identity Disorder, a recognized medical condition. The court found that this status was entitled only to rational basis review, and that hypothetical concerns were rationally related.
The court then set a date for a hearing on the remedy for next week.
I think the court did an admirable job of negotiating the precedent here and the legal doctrines that seem to conflict. The case demonstrates the weakness, though, in my view of the way we draw lines and protect only some identities and not others. Many cases that involve sex, sexual identity, and sexual orientation can be characterized in ways that do receive protection (sex stereotyping) and ways that do not (unprotected identities or conduct unrelated to identity). So to categorically wall off some things (or wall in some things) requires us to do lots of mental gymnastics. Maybe that's simply what law does in any case, but it's particularly pronounced here. And the same could be true for race, with slightly different twists.