11th Circuit: Transgender Discrimination Is Sex-Based Discrimination

A Georgia transgender woman has won her appeal that she was illegally fired for planning to make her gender transition. Vandy Beth Glenn had been a legislative editor in the Georgia General Assembly, but her supervisor, now-retired legislative counsel Sewell Brumby, testified that he found the thought of her transition “unsettling,” “unnatural,” and something that others would view as “immoral.” An 11th Circuit panel ruled that her termination constituted sex discrimination and the decision could have a far-reaching impact on protecting the rights of transgender people:

In each of these foundational cases, the Court concluded that discriminatory state action could not stand on the basis of gender stereotypes. The Court’s more recent cases reiterate that the Equal Protection Clause does not tolerate gender stereotypes. Accordingly, governmental acts based upon gender stereotypes–which presume that men and women’s appearance and behavior will be determined by their sex–must be subjected to heightened scrutiny because they embody “the very stereotype the law condemns.”

We conclude that a government agent violates the Equal Protection Clause’s prohibition of sex-based discrimination when he or she fires a transgender or transsexual employee because of his or her gender non-conformity.

The state could still appeal this decision to the full 11th Circuit or the U.S. Supreme Court.

It is worth noting that all three judges on the panel concurred, including Judge William H. Pryor. Pryor’s nomination to the bench was opposed by LGBT groups, who noted that he had filed an amicus brief supporting sodomy laws in Lawrence v. Texas. He also cast the deciding vote to oppose hearing a challenge to Florida’s law that banned gay people from adopting.