Two days ago, the United States Court of Appeals for the 11th Circuit handed a significant win to a transsexual employee in the case of Glenn v. Brumby. What makes this decision significant is not only that the 11th Circuit covers one of the most conservative parts of the country (Georgia, Alabama and Florida), but more significantly that it adopted the idea that discrimination against a trans employee is sex discrimination, under the federal sex discrimination statute, the third U.S. Court of Appeals to do so. (This case itself is premised on a different legal theory, but the decision specifically mentions the federal statute as comparable.) As the old saying goes, once is happenstance, twice is a coincidence, but three times is a pattern. The fact that three U.S. appeals courts have now ruled in favor of transgender employees is very, very significant.
Congratulations to plaintiff Vandy Beth Glenn, and kudos to Lambda Legal and to attorney Greg Nevins, who did an excellent job of shepherding this case through the 11th Circuit. This decision could be appealed to the U.S. Supreme Court, but some observers have suggested that this is not the type of case the Supreme Court is likely to take, nor one that employers would like to see in that Court, and I agree with those observations.
But what makes the Glenn appeals court decision particularly fascinating is how it subtly shifts the ground of decision away from a growing list of employer defenses like bathroom usage concerns and so-called "business necessity."
While I applauded the District Court's decision in this case, I was left with a number of concerns about how the decision was worded, as I explained in a post at the time.
The new decision alleviates my concerns, at least in the 11th Circuit.
The question of whether the federal sex discrimination statute covers discrimination against a trans employee is a contested one within the federal court system. This is one of the reasons that trans people consider it crucial that the Employment Non-Discrimination Act, a bill introduced in several Congressional sessions, include gender identity. But at the same time, transgender employees harassed or fired because of their gender identity have sought to have courts recognize the common-sense proposition that the term "sex discrimination," for purposes of the federal sex discrimination laws, also includes "gender discrimination," with all that implies for discrimination based on gender identity. I've written a law review article on the historical evolution of the term "sex," arguing exactly that.
One of the difficulties is that the theory on which federal courts often proceed in these cases is so-called "sex stereotyping." In other words, discrimination based on the failure to live up to the employer's stereotypes of how a person of a particular sex should behave is a form of sex discrimination. But that theory leaves open the door to the argument that it is not sex discrimination to fire a trans employee because of concerns about bathroom usage or so-called "business necessity," meaning clients or customers not wanting to deal with a trans employee.
As I noted in my post on the Glenn District Court decision by Judge Story:
Mr. Brumby's lawyers argued that one legitimate government purpose is the avoidance of lawsuits against the government.
Defendant argues that Plaintiff's continued employment at OLC while presenting as a woman without undergoing genital reassignment surgery, could expose the government to suits for invasion of privacy or sexual harassment. Defendant argues that although there were single-occupancy restrooms available in the OLC office, Plaintiff was not required to use these and may have used the multi-person restrooms located elsewhere in the Georgia Capitol Building.
But Judge Story said this wasn't a good argument because there was no evidence that Brumby was, in fact, concerned with Plaintiff's restroom usage, or discussed Plaintiff's restroom usage with her or anyone else before her termination.
In other words, in another case, in which the employer manufactures a couple of memos raising concerns about lawsuits based on bathroom use, that might constitute a defense.
That's not so good.
In fact, Judge Story specifically admired a few other cases in which the trans workers was fired because of bathroom concerns.
In fact, he specifically quoted a crazy Tenth Circuit case (Etsitty v. Utah Transit Authority):
However far Price Waterhouse reaches, this court cannot conclude it requires employers to allow biological males to use women's restrooms. Use of a restroom designated for the opposite sex does not constitute a mere failure to conform to sex stereotypes.
See? This is why I don't like the "sex stereotyping" theory so much. It's not just that it leaves the bathroom question wide open. It's also that it hypothesizes trans women as men, and trans men as women.
Under this reasoning, a trans worker must come up with alternatives to using multi-use public bathrooms. I have addressed this issue in my book on Transgender Workplace Diversity, because the social needs of employers have to be addressed, as well as the legal ones, and there are many solutions. But it's not necessary for the courts, however, to mandate this, and it leads to legal theories that are out of step with the reality of the lived experience of transgender people in the workplace.
Likewise, this Court does not conclude that Price Waterhouse requires employers to allow individuals with male genitalia to use women's restrooms. However, that is not the situation presented by the facts of this case. The evidence demonstrates that the OLC contained four private bathrooms.
Does this language mean that trans people must use private bathrooms for the rest of their career? That would be silly. Does it mean that employers get to ask medical questions about their trans workers' genitalia?
My experience, working with many corporations, shows that the concerns, if any, among co-workers usually are completely gone within 90 days of transition. That's a time considerably shorter than the one year of living full-time in the new gender before surgery, as required by the WPATH standards.
Judge Story also addressed two concerns briefly raised by the defense. The first was regarding the good operation of the Office of Legislative Counsel. The second was the Office having the confidence of the legislators of the State of Georgia. Judge Story said these were pretexts, and not the real reasons for dismissal.
These are similar to an often-raised defense, called the "business necessity" defense. Its usage is more complex than I can discuss here.
The important thing to understand is that such concerns can be recognized as legitimate concerns, but disallowed in a particular case, as Judge Story did. Or, better, they can be recognized as "illegitimate," and recognized as nothing more than discriminatory nonsense, as Judge Robertson did in the Schroer case.
I think the "business necessity" defense is nonsense. It's nothing more than "work performance" dressed up in a scary costume. Yes, if someone, trans or nontrans, is not getting the job done, then you can fire them. There's no reason to make a necessity out of it. It's all too true, here as elsewhere, that necessity is the mother of invention.
But putting aside bad puns, look what Judge Story would allow future employers to get away with:
Plaintiff's immediate supervisor did not believe that she should be fired. Further, when Brumby asked two OLC attorneys what they thought of working with an individual who was undergoing a gender transition, neither expressed concerns. In regards to Georgia legislators, the record indicates that Brumby communicated his intent to fire Plaintiff to the Speaker of the Georgia House of Representative, the Lieutenant Governor, and the
President Pro Tempore of the State Senate, and the record does not indicate that any of the three expressed concern that their confidence in the OLC would diminish if Plaintiff remained employed. To the extent that the record contains any evidence that legislators would lose "confidence" in the OLC, it is in the form of Brumby's statement that some legislators would believe that Glenn's gender transition was immoral, unnatural, and "ultraliberal."
Okay, that's nice. But what if they had concerns about working with a transgender co-worker, or with a department that had a transgender worker? Can you then throw her out? Judge Story left that point a bit unclear.
The appeals court decision, by contrast, made it clear that such considerations are not, and cannot ever be (at least in the 11th Circuit) a defense in a Title VII case under the federal sex discrimination statute:
Brumby's testimony provides ample direct evidence to support the district court's conclusion that Brumby acted on the basis of Glenn's gender non-conformity.
If this were a Title VII case, the analysis would end here. See Lewis v. Smith, 731 F. 2d 1535, 1537-38 (11th Cir. 1984) ("If the evidence consists of direct testimony that the defendant acted with a discriminatory motive, and the trier of fact accepts this testimony, the ultimate issue of discrimination is proved.")
This is a very significant statement, which contrasts sharply with the District Court's statement that "the burden now shifts to Brumby that his action was taken for a legitimate nondiscriminatory reason." In fact, once Brumby admitted that he acted on the basis of Ms. Glenn's plan to transition, that was the end of the case regarding discrimination. Concerns about bathroom use or business necessity do not vitiate discrimination based on sex, at least according to the 11th Circuit. This compares favorably with the widely-heralded District Court decision in Schroer v. Billington.
However, the Glenn case is not a case brought under the federal sex discrimination statute. It was brought under the Equal Protection Clause of the United States Constitution because Ms. Glenn is a government employee, and the government, unlike private employers, has a duty not to engage in unequal protection of the laws. Under that rubric, the government is allowed to show that, in sex discrimination cases, it had an "exceedingly persuasive justification" for the unequal treatment.
The appeals court, as had the lower court, found that there was no such "exceedingly persuasive justification." Brumby had argued that he was concerned that other women might object to Ms. Glenn's restroom use, but there was no evidence that he was actually motivated by concern over litigation regarding Ms. Glenn's restroom use, and the argument was particularly ludicrous given the fact that the office had only single-occupancy restrooms. However, this means there is an extra step in cases brought on the basis of the Equal Protection Clause, and it might be useful for government employees considering suit against their employer to consider whether it might not be wise to consider including Title VII as an alternative ground for suit if possible.
This decision of the 11th Circuit Court of Appeals is a major victory not only for Ms. Glenn and Lambda Legal, but also for the trans community and the LGBT community as a whole.