Gender identity discrimination has become something of a hot topic these days. Just last month Massachusetts became the latest state to enact a law prohibiting employers from discriminating against employees on the basis of gender identity. The Massachusetts law defines gender identity as "gender-related identity, appearance, or behavior, whether or not that gender-related identity, appearance, or behavior is different from that traditionally associated with the person's physiology or assigned sex at birth". If you're like me, you may find that definition a little confusing.
Whether confusing or not, gender identity cases are guaranteed to be thought provoking, to push buttons, and to make news. The Eleventh Circuit issued a ruling in such a case yesterday. The court affirmed a Georgia trial court's granting of summary judgment in favor of a transgender woman, Vandiver Elizabeth Glenn, who had been fired from her job with the Georgia state legislature. She had been hired as a man, but later announced that she was in the process of becoming a woman. She also said that she would begin coming to work dressed as a woman. Her ultimate boss, Sewell Brumby, fired her because he thought that her "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."
So, there was no dispute why the employee was fired - the only dispute was whether the firing was unlawful. The court found that it was. The court found that "discrimination against a transgender individual because of her gender non-conformity is sex discrimination". The court also stated that "[a]ll persons, whether transgender or not, are protected from discrimination on the basis of gender stereotype."
Since Glenn worked for the government, the case was brought under the Equal Protection Clause. But, the opinion indicates that the same rationale would apply if a transgender person brought a similar claim under Title VII against a private employer.
Some will ask if this case opens a can of worms. The defendant in this case argued that concerns about Glenn's using the women's restroom justified the termination. The court dismissed the argument as "speculation". The fact is that gender identity issues don't arise much in the workplace. Most employers will never have to deal with them. But, those that have to need to be cognizant that treating a person differently because they don't conform to your gender-related expectations ("he is too effeminate to be a salesperson"; "she is too masculine to meet with this client") can be problematic.
One thought I had was this - this case makes pretty clear that federal law protects transgender people from employment discrimination. But, as we know, federal law offers no such protection for gay and lesbian people. Does anyone think that makes any sense?
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