Devi Rao, CLS ’10, is a Skadden Fellow for Educational and Employment Opportunities at the National Women’s Law Center, where she focuses on using Title IX to promote safe school environments, including preventing gender-based bullying. Devi is a graduate of the University of California, Berkeley and Columbia Law School, where she served as Editor-in-Chief of the Columbia Law Review. She discusses the 11th Circuit’s new Glenn v. Brumby decision below, cross posted from the National Law Women’s Center blog:
Last week, a federal appeals court in Georgia with a conservative reputation ruled in the strongest terms that “[a]n individual cannot be punished because of his or her gender-nonconformity. Because these protections are afforded to everyone, they cannot be denied to a transgender individual.”
In 2007, Vandy Elizabeth Glenn (who at that time went by Glenn Morrison) told her boss at the Georgia General Assembly’s Office of Legislative Counsel that she was planning on transitioning from male to female. He promptly fired her, after remarking that “it’s unsettling to think of someone dressed in women’s clothing with male sexual organs inside that clothing,” and describing a male in women’s clothing as “unnatural.”
In a unanimous opinion written by Judge Rosemary Barkett, the court held that “discriminating against someone on the basis of his or her gender non-conformity constitutes sex discrimination under the Equal Protection Clause” of the Fourteenth Amendment to the U.S. Constitution, and that “discrimination against a transgender individual because of her gender nonconformity is sex discrimination.”
This case is a huge step forward for LGBT rights—it will force many employers to think twice before they fire transgender workers for discriminatory reasons. And it sends a message to transgender men and women that they are legally protected from sex discrimination in the workplace. It also reaffirms the continuing importance of the Equal Protection Clause’s protection against discrimination on the basis of gender stereotypes today.
Moreover, although the decision was based on the Equal Protection Clause—which covers only governmental discrimination—its reasoning would seem to apply to the context of Title VII of the Civil Rights Act of 1964, which prohibits discrimination in both public and private workplaces. The Eleventh Circuit relied on Price Waterhouse v. Hopkins, a Title VII Supreme Court case, for the proposition that discrimination based on gender stereotypes is unlawful sex discrimination. And courts routinely use Title VII cases in interpreting Title IX of the Education Amendments of 1972, which prohibits sex discrimination in education. So the Glenn decision has the potential to lead to greater and greater protection for transgender individuals in other spheres.
Still, there is much work to be done. Currently there is no federal law in place that explicitly protects LGBT individuals in the workplace, and although the Obama Administration has issued strong protections for transgender federal employees, in many states it’s legal to fire someone solely because they’re lesbian, gay, bisexual, or transgender. The absence of such protection has had significant impact on many transgender workers. In a recent study, 47% of transgender respondents said they had experienced an adverse job outcome—being fired, not hired, or denied promotion—because of being transgender. A full 26% reported being fired due to discrimination.
There are two bills currently pending before Congress that could provide much-needed protections to LGBT employees and students. The Employment Non-Discrimination Act (ENDA) would protect individuals from discrimination on the basis of actual or perceived sexual orientation and gender identity in both public and private employment. And the Student Non-Discrimination Act would outlaw discrimination in K-12 public schools on the basis of actual or perceived gender identity and sexual orientation.
Congress must pass these laws to close the dangerous loopholes that currently allow discrimination against LGBT individuals. The Glenn decision is a historic step, but it won’t get us all the way there.