Halloween Costume or Transgender Presentation?

Halloween transgender Alabama Employment Law 11th Circuit
An employee’s Halloween “costume” might actually be their attempt to present at work as transgender person.

Happy Halloween!  To celebrate the occasion, I did a little research on the intersection of employment law and Halloween in the Eleventh Circuit, and decided to discuss Glenn v. Bumbry, 663 F.3d 1312 (11th Cir. 2011).  Glenn involves a transgender employee who was born as a man, but presented at work as a woman on Halloween.

Glenn was hired by the Georgia General Assembly’s Office of Legislative Counsel (“OLC”) in 2005.  When hired, Glenn was presenting as a man, but had been diagnosed with Gender Identity Disorder.  In 2006, Glenn informed her direct supervisor that she was transsexual and in the process of becoming a woman.  On Halloween, OLC employees were permitted to attend work wearing costumes.  Thus, Glenn came to work presenting as a woman.  The head of the OLC, Sewell Brumby, told Glenn that her appearance was not appropriate and told her to leave the office.  “Brumby stated that ‘it’s unsettling to think of someone dressed in women’s clothing with male sexual organs inside that clothing,’ and that a male in women’s clothing is ‘unnatural.'”  In 2007, Glenn informed her supervisor that she would begin coming to work as a woman and was also changing her name.  Brumby then terminated Glenn because he viewed the gender transition as “inappropriate,” “disruptive,” a “moral issue,” and “it would make Glenn’s coworkers uncomfortable.”

Glenn sued for sex discrimination and won at the trial level.  Brumby appealed to the Eleventh Circuit Court of Appeals.  In Glenn v. Bumbry, the Eleventh Circuit issued its first opinion finding that discrimination against a transgender person is impermissible.  The Court found that “discrimination against a transgender individual because of her gender-nonconformity is sex discrimination, whether it’s described as being on the basis of sex or gender.”

I previously discussed discrimination based upon gender stereotypes here.  So, if your office permits employees to dress-up for Halloween, and one of your employees shows up dressed as a member of the opposite sex, they may be protected by Title VII of the Civil Rights Act of 1964.