Last week, the federal Eleventh Circuit Court of Appeals (which covers Florida, Georgia and Alabama) ruled in favor of Vandiver Elizabeth Glenn, an employee who was fired after informing her employer, the Georgia Legislature, that she was a transsexual and planned on undergoing a complete gender transformation from male to female. Glenn sued the Georgia Legislature alleging sex and medical condition (Gender Identify Disorder) discrimination under the Equal Protection Clause of the U.S. Constitution. The Court found Glenn was a victim of sex discrimination. However, it did not address the merits of the medical discrimination claim stating that the decision provided Glenn with all necessary relief.
Judge Rosemary Barkett, who wrote the opinion for the unanimous three-member panel, stated,
An individual cannot be punished because of his or her perceived gender non-conformity. Because these protections are afforded to everyone, they cannot be denied to a transgender individual. The nature of the discrimination is the same; it may differ in degree but not in kind, and discrimination on this basis is a form of sex-based discrimination that is subject to heightened scrutiny under the Equal Protection Clause. Ever since the Supreme Court began to apply heightened scrutiny to sex-based classifications, its consistent purpose has been to eliminate discrimination on the basis of gender stereotypes.
Since the Court’s decision was based solely on the protections provided by the Equal Protection Clause, it only applies to public sector employers, not private employers. However, Title VII of the Civil Rights Act, the law applicable to most private employers, was frequently referenced by the Court. The decision should put private employers on notice that discrimination against transgender employees may soon be prohibited in the private sector as well, either through court decisions or legislation. For businesses in South Florida there are already ordinances in Palm Beach County, Broward County and Miami Beach which protect applicants and employees from gender identity/expression discrimination.