transgender Archives - Employing Alabama

Halloween Costume or Transgender Presentation?

October 31, 2017Robert C. Lockwood

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.

President Trump Not Responsible for Discrimination by Employers

October 19, 2017Robert C. Lockwood

Trump transgender discrimination Alabama Employment Law — President Trump’s transgender ban does not injure individuals who suffer discrimination from private employers.

A federal judge in Alabama ruled last week that President Donald Trump is not legally responsible for potential discrimination by private employers. See Williamson v. Trump, No. 7:17-01490-LSC, 2017 WL 4536419 (N.D. Ala. Oct. 11, 2017). On August 15, 2017, President Trump issued a Presidential Memorandum for the Secretary of Defense and Homeland Security. That memorandum prohibits accession of transgender employees in the United States military and authorizes the discharge of such individuals. Cassandra Williamson is a transgender veteran living in Tuscaloosa, Alabama. Ms. Williamson sued, claiming that the memorandum violated her rights to equal protection under the United States Constitution.

Ms. Williamson did not argue that she is a part of the class of military personnel directly affected by the memorandum. Instead, she claimed that President Trump’s memorandum had an immediate and chilling impact on her “ability to get work,” because it was “seen by the community and prospective potential employers … as justification to not consider her for employment and to mistreat her when she goes out to get food, go to church, and deal with other issues in the community, or even to walk her dog.”

United States District Court Judge Scott Coogler dismissed Ms. Williamson’s complaint. Judge Cooger relied upon a legal doctrine called “standing.” In summary, the standing doctrine required Ms. Williamson to demonstrate that she was injured by President Trump’s memorandum, and that the court could prevent future injuries. Ms. Williamson’s complaint failed to surmount that obstacle: “Plaintiff’s allegations are that employers, not the President, have caused an injury to Plaintiff through employment discrimination. Although the memorandum does order that the accession of transgender persons in the military eventually be ceased, it in no way directs the hiring practices of private individuals or companies.”

Ms. Williamson lost her case because she is not directly affected by the memorandum. Several other law suits have been filed in other parts of the country directly challenging the ban on behalf of service members. The United States Department of Justice filed a motion two weeks ago seeking to have one of those cases dismissed. Here’s a link discussing that motion. DOJ Moves To Dismiss Transgender Ban Lawsuit.

Judge Recognizes Gender Dysphoria as a Disability

June 27, 2017Robert C. Lockwood

gender dysphoria ADA — A federal judge recently recognized gender dysphoria as a disability.

A federal judge in Pennsylvania recently found that an employee with gender dysphoria could sue under the Americans with Disabilities Act. See Blatt v. Cabela’s Retail, Inc., 2017 WL 2178123 (E.D. Pa. May 18, 2017). Kate Lynn Blatt claimed that she was terminated by Cabela’s because of her sex and disability — gender dysphoria. Cabela’s asked United States District Court Judge Joseph F. Leeson, Jr. to dismiss the ADA claims.

The ADA’s express language says that the term “disability” does not include “transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, or other sexual behavior disorders.” 42 U.S.C. §12211 (emphasis added). And, Ms. Blatt claimed that she was diagnosed with “Gender Dysphoria, also known as Gender Identity Disorder.” Blatt, 2017 2178123 at *2 (emphasis added).

While Ms. Blatt’s claim would appear to be barred by the ADA’s definition of a disability, Judge Leeson refused to dismiss the claim. He found that the ADA intended to only exclude those people “identifying” with a different gender. But, gender dysphoria “goes beyond merely identifying with a different gender and is characterized by clinically significant stress and other impairments that may be disabling.” Blatt, 2017 2178123 at *2.

Judge Leeson’s opinion appears to be an effort to avoid a constitutional question. Ms. Blatt claimed that the ADA’s exclusion of gender identity disorders violated her Equal Protection Rights. In order to avoid that issue, Judge Leeson found that Ms. Blatt was not excluded. But, in avoiding the constitutional question, Judge Leeson may have extended the ADA beyond its intended scope. The ADA, and its definition of “disability,” was passed by Congress in 1990. At that time, the Third Edition of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders merely used the term “gender identity disorder.” But, in 1994, the Fourth Edition of that Manual replaced the term “gender identity disorder” with the more descriptive term “gender dysphoria.” Kothmann v. Rosario, 558 Fed. Appx. 907, 908 n.2 (11th Cir. 2014). Thus, Judge Leeson’s attempt to distinguish between “gender identity disorder” and “gender dysphoria” may be an error based on differences in time and definitions.

Nevertheless, Blatt provides yet another reason for employers to proceed cautiously when disciplining transgender employees. Under Title VII’s sexual discrimination provisions, employers must be careful to avoid disciplining transgender employees for failure to conform to gender stereotypes. Discussion on Transgender Protections. Now, employers must also consider whether an employee’s gender dysphoria is a disability and entitled to protection.