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.

22 comments

  1. New blog post from Devi Rao on Glenn v. Brumby: "A Huge Legal Win for Trans Rights, But Legislation is Still Needed" http://t.co/88fcUW4t

  2. New blog post from Devi Rao on Glenn v. Brumby: "A Huge Legal Win for Trans Rights, But Legislation is Still Needed" http://t.co/88fcUW4t

  3. New blog post from Devi Rao on Glenn v. Brumby: "A Huge Legal Win for Trans Rights, But Legislation is Still Needed" http://t.co/88fcUW4t

  4. New blog post from Devi Rao on Glenn v. Brumby: "A Huge Legal Win for Trans Rights, But Legislation is Still Needed" http://t.co/88fcUW4t

  5. New blog post from Devi Rao on Glenn v. Brumby: "A Huge Legal Win for Trans Rights, But Legislation is Still Needed" http://t.co/88fcUW4t

  6. New blog post from Devi Rao on Glenn v. Brumby: "A Huge Legal Win for Trans Rights, But Legislation is Still Needed" http://t.co/88fcUW4t

  7. New blog post from Devi Rao on Glenn v. Brumby: "A Huge Legal Win for Trans Rights, But Legislation is Still Needed" http://t.co/88fcUW4t

  8. New blog post from Devi Rao on Glenn v. Brumby: "A Huge Legal Win for Trans Rights, But Legislation is Still Needed" http://t.co/88fcUW4t

  9. It’s worth noting that December has also been a big month in trans marriage rights – when James Scott was awarded the right to a divorce in Texas. (http://www.thailawforum.com/blog/texas-transgender-man-awarded-right-to-divorce)

  10. RT @GenderSexLaw From Devi Rao on Glenn v. Brumby: "A Huge Legal Win for Trans Rights, But Legislation is Still Needed" http://t.co/6FxJCR3H

  11. Good summary of why "the Glenn decision is a historic step, but it won’t get us all the way there": http://t.co/KhrPhLGw

  12. New blog post from Devi Rao on Glenn v. Brumby: "A Huge Legal Win for Trans Rights, But Legislation is Still Needed" http://t.co/88fcUW4t

  13. New blog post from Devi Rao on Glenn v. Brumby: "A Huge Legal Win for Trans Rights, But Legislation is Still Needed" http://t.co/88fcUW4t

  14. Victory! Georgia court ruling: “an individual cannot be punished because of his or her gender-nonconformity." http://t.co/wRGWIUc0

  15. Victory! Georgia court ruling: “an individual cannot be punished because of his or her gender-nonconformity." http://t.co/wRGWIUc0

  16. Victory! Georgia court ruling: “an individual cannot be punished because of his or her gender-nonconformity." http://t.co/wRGWIUc0

  17. Victory! Georgia court ruling: “an individual cannot be punished because of his or her gender-nonconformity." http://t.co/wRGWIUc0

  18. Victory! Georgia court ruling: “an individual cannot be punished because of his or her gender-nonconformity." http://t.co/wRGWIUc0

  19. The Harvard scene was discussed at some length pattern week, including a record on the Exposed Capitalism blog and not later than Bloomberg’s own Tom Keene on the EconoChat blog. Neither were what undivided power baptize sympathetic to the protesters.

  20. New blog post from Devi Rao on Glenn v. Brumby: "A Huge Legal Win for Trans Rights, But Legislation is Still Needed" http://t.co/88fcUW4t

  21. There used to be sexual discrimination traditionally in the martial art of Taekwondo but the widening acceptance and introduction has eradficated it. Now most traing centers are 50/50 gender ratio and females compete in every aspect of the sport.

  22. Hey amiga!!! I really like the dress but… I think the top is SO YOU!! So colorful and free flowing- which is my choice for you. You’ll generate a splash in either. I love the Limited but haven’t shopped there in a while- thanks to the reminder. Hugs!!

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