Vandy Beth Glenn, a transgender woman from Georgia, had been working as a proofreader and editor in the state’s Office of Legislative Counsel. Two years into her employment, in 2007, Glenn went to her supervisor to inform her of the pending transition. Her supervisor then took this news to her boss, Legislative Counsel Sewell Brumby. Brumby then terminated Glenn’s employment.
This story is likely not too uncommon for many other transgender people out there. I still remember telling my employer about my own transition, all those years ago, and expecting that I’d soon be given my pink slip. Further, I suspect you’ll find very few transgender people who have found employment hard to gain due to being transgender, or even who’ve had to face troubled times at work after their gender identity or expression becomes the subject of so-called “water cooler” chatter.
Glenn’s story doesn’t end quite the same as it does for many, perhaps most, and this is important.
In 2008, she filed suit against the state, claiming that the Glenn’s termination violated the Equal Protection clause of the Fourteenth Amendment of the United States Constitution. Specifically, her lawyers claimed that treating her employment differently due to her transgender status was in violation.
Now a district court agreed, ruling that the Constitution was indeed violated, and Glenn was discriminated against. The state, naturally, appealed to the Eleventh Circuit.
This year, the Eleventh Circuit has handed down its decision. In a 3-0 decision, the District Court’s ruling has been upheld. In handing down its decision, the panel stated, “An individual cannot be punished because of his or her perceived gender-nonconformity. Because these protections are afforded to everyone, they cannot be denied to a transgender individual… A person is defined as transgender precisely because of the perception that his or her behavior transgresses gender stereotypes.”
This isn’t the first time Federal law has been on our side. While the Civil Rights Act of 1964 does not provide any explicitly protections based on gender expression and identity—nor, for that matter, sexual orientation—we have been seeing recent instances of Title VII protections extended to transgender people. Perhaps the best known is Schwenk v. Hartford, where a transgender prisoner sued after an assault by a guard. The Ninth Circuit determined that, “discrimination because one fails to act in the way expected of a man or a woman is forbidden under Title VII.”
I’d be remiss if I did not mention this is a complete turnaround of a dusty, old Title VII case, Ulane v. Eastern Airlines, Inc. from 1984. In Ulane, the Seventh Court held that the United States Congress, in enacting Title VII, only meant to “prohibit discrimination against women because they are women and men because they are men.”
What Glenn v. Brumby has done is take this into new ground, saying that transgender people do enjoy the same protections as others under the Fourteenth Amendment, and giving another avenue for transgender people who have had their rights violated.
Is it perfect? No. Much like the Ulane case was seemingly superseded by other Title VII cases, we could see other court challenges come down the line and rule opposite of the Glenn case. While this is one step below the United States Supreme Court, is it not a decision of SCOTUS, and like it or not, that leaves a bit of wiggle room in the future.
It’s important to add, too, that if Glenn’s case had been a Title VII case, things would have gone a very different way—the appeals court did not feel that Glenn’s gender “non-conformity” would have applied in that case.
Of course all of this does require filing court cases, and likely going through a lengthy appeal process. Glenn was fired in October 2007, and it’s taken until December 2011 to have this ruled in her favor. Not everyone has the resources and intestinal fortitude to go through this process.
That said, it’s important to consider that this case does provide some basis for those who can pursue a case. If the historically conservative Eleventh circuit can find in Glenn’s favor, then there’s hope for us all.
I’d like to see this victory taken a couple steps further. For one, I’d like to see the Department of Justice look at where transgender people fall under Title VII, under the Fourteenth Amendment, and other places rights based on sex or gender are mentioned. Perhaps it is time these are clarified, in the light of trials such as Glenn v. Brumby.More than this, it also points to the importance of bills such as the Employment Non-Discrimination Act, and the need for this now-transgender inclusive bill to pass. Let’s clear this up, once and for all, and make sure that transgender protections are, and will be the law of the land.
One more thing: Hillary Clinton spoke to the United Nations within days of the Glenn decision. In a speech celebrating the anniversary of the Universal Declaration of Human Rights, Clinton spoke at length about the importance of LGBT rights.
“I am talking about gay, lesbian, bisexual, and transgender people,” Clinton said, “human beings born free and given bestowed equality and dignity, who have a right to claim that, which is now one of the remaining human rights challenges of our time.”
She followed that up by immediately saying, “I speak about this subject knowing that my own country’s record on human rights for gay people is far from perfect.”
Cases like Glenn v. Brumby are a step in the right direction. Let’s take more steps, and see that all people truly are protected.
Gwen Smith may be left handed, but she’ll take all the rights she can get. You can find her on the web at GwenSmith.com.