The U.S. District Court for the Northern District of Georgia ruled late Friday that the Georgia General Assembly illegally discriminated against a transgender woman by firing her when she announced her plan to transition from male to female.
In so doing, the Georgia federal court has joined a number of other courts around the country that have ruled similarly. The case, Vandiver Elizabeth Glenn v. Sewell R. Brumby, could now be appealed to the 11th U.S. Circuit Court of Appeals.
As I argued in a recent law review article, I believe that a case on this issue will make its way to the U.S. Supreme Court in the next few years, and, what's more, I believe that the Supreme Court would uphold the application of sex discrimination law to transgender employees. Many scholars disagree with my analysis, but that's my story, and I'm sticking to it.
The Glenn opinion has several interesting features, the most unusual of which is that the complainant won the case, not after a trial, but on a motion for summary judgment. That is a request to the court to decide the case without a trial, just based on the admissions of the parties. It is very rare for a plaintiff to win the case without a trial. Also, this case does not involve the federal civil rights statute, colloquially known as Title VII, but is premised directly on the U.S. Constitution's Equal Protection Clause of the 14th Amendment. (No state shall deny to any person the equal protection of the laws.) That factor, perhaps more than any other, could position this case for review by the high court.
Analysis of this case, its relation to past cases, its likely future course, and the incredibly brilliant Lambda Legal strategy, after the jump.
Ms. Glenn is represented by Lambda Legal, which issued a press release discussing the victory.
According to Lambda Legal's summary, Vandy Beth Glenn worked for two years in the General Assembly's Office of Legislative Counsel as an editor and proofreader of bill language. In 2007, Glenn informed her immediate supervisor, Beth Yinger, that she planned to proceed with her transition from male to female. Yinger passed the information on to the General Assembly's Legislative Counsel, Sewell Brumby, head of the office. Brumby fired her on the spot.
Lambda Legal filed a complaint asserting that her firing violated the Constitution's equal protection guarantee because it treated her differently due to her female gender identity and her nonconformity with gender stereotypes. In addition, General Assembly officials disregarded Glenn's Gender Identity Disorder, a condition listed in the American Psychiatric Association's Diagnostic and Statistical Manual, and her needed treatment -- also an equal protection violation.
Greg Nevins, Supervising Senior Staff Attorney in Lambda Legal's Southern Regional Office in Atlanta and Dru Levasseur, Lambda Legal's Transgender Rights Attorney handled the case. That their strategy was brilliant makes the story all the more interesting.
The case was heard by U.S. District Court judge Richard W. Story, who was appointed by President Clinton in 1997. He kept his opinion fairly short, considering all the detours it could have taken. However, it's obvious from even his brief comments that he had his eyes wide open on this case, and understood its complexities quite well. That's more than can be said of a lot of judges.
They Didn't Use the Federal Civil Rights Statute
Filing a case against a state government introduces certain complexities to an ordinary employment discrimination case. It's a little like running with lead weights attached to your feet. It can be done, but not easily.
States, as "sovereign" (i.e. ruling) entities, have immunity from being sued in their own courts or the federal courts, unless they consent. That means they're covered in a cone-of-silence and federal judges can't touch 'em. It's a bit more complicated than that, but it is for this reason that the federal employment discrimination statute did not initially cover state employees when it was passed in 1964.
While that was changed in 1972 to cover most state employees, it still exempted employees of state elected officials. Congress didn't want the feds to look like the big bully that could sue state officials if they got out of line. Not that it would really happen that way, but the appearance was bad, and the federal courts probably would have nixed it when it got to court. Glenn appears to have been working for elected officials, though I'm not certain of that, as an employee of the Georgia General Assembly.
Even so, Congress amended the federal civil rights statute again in 1991 to include certain employees of state elected officials. But as usual, the application of that legislation can be a bit unclear. It would likely have muddied the waters of the case.
By the way, that's classic general strategy passed down through generations of trial attorneys. The complainant's job is to make the case look crystal clear, open and shut, nothing confusing. The job of the defense is to muddy the waters, make it look complicated and confusing, and not at all an open-and-shut case.
In addition, the Ninth Circuit Court of Appeals, covering the western part of the country, said that the 1991 amendments did not properly address the sovereign immunity of the states, though that decision was reversed. More muddy waters to be avoided. While that case would not create a formal barrier to a lawsuit in a federal court in Georgia, it could have made the prosecution of the lawsuit immensely more messy if the State picked up on the issue and decided to press it.
Thus, Ms. Glenn, as a state government employee, might have been covered by Title VII; she might not have.
In addition, a Title VII lawsuit has to first be filed with the EEOC within 180 days of the incident (which would have been up in April 2008, three months before the lawsuit was actually filed). It would have then gone through an EEOC investigation. The EEOC's position on trans employees is somewhat iffy, although it did write a memo in 2007 that seemed to indicate that trans employees could be covered by Title VII in some factual situations.
If George Bush's EEOC had ruled against her, that might have also made a suit more difficult.
Brilliant Legal Maneuvering
All these factors suggest that Lambda Legal's decision not to go through Title VII was a brilliant legal maneuver.
Instead, they sued directly under the U.S. Constitution's Equal Protection Clause (No state shall deny to any person the equal protection of the laws) via an enabling statute, 42 USC 1983, that allows lawsuits against state officers who violate a person's constitutional rights under color of any state authority.
Section 1983 was originally enacted to allow suit against sheriffs and police officials in the South for violations of constitutional rights. Many of those officials were allied with the KKK and other Jim Crow elements, and contributed to the general atmosphere of violence and impunity against African-Americans.
But now section 1983 is routinely used for suits based on violations of constitutional rights by state officials.
In addition, Lambda Legal did not sue for monetary damages, probably because that would have triggered more arguments about sovereign immunity of the State of Georgia. Pretty smart.
Instead, they sued for an injunction requiring the State to re-hire her.
They alleged two grounds for equal protection violation:
(1) because it treated her differently due to her nonconformity with sex stereotypes, and
(2) because it treated her differently due to her medical condition.
Now, interestingly, Ms. Glenn won on the first ground, but lost as to the second ground.
There is lots more to tell about this fascinating case. Will she get her job back? Does she want her job back? (There's a hearing on that scheduled for July 13.) But I've run out of time, so that must wait for tomorrow.