Dr. Jillian T. Weiss

Glenn v. Brumby: Judge Story Makes Hamburger Out Of Perfectly Good Steak

Filed By Dr. Jillian T. Weiss | July 08, 2010 12:00 PM | comments

Filed in: Politics, Transgender & Intersex
Tags: employment discrimination, Georgia General Assembly, Georgia legislature, Glenn v. Brumby, transgender discrimination, transgender employees, U.S. Northern District of Georgia, Vandiver Elizabeth Glenn, Vandy Beth Glenn

As I discussed yesterday, the Glenn v. Brumby lawsuit is premised on the Equal Protection clause of the U.S. Constitution's 14th Amendment (No state shall deny to any person the equal protection of the laws), rather than the federal civil rights statute.hamburger-helper.jpg

This brilliant legal maneuver was permissible because Ms. Glenn worked for the state government.

What does the Equal Protection clause mean? When is my equal protection of the law denied?

As quoted by the Court, the central mandate of the equal protection guarantee is that "the sovereign [i.e., the Government] may not draw distinctions between individuals based solely on differences that are irrelevant to a legitimate governmental objective."

In other words, the Government can't give me the boot because of my differences unless they have a legit reason.

In ruling for Ms. Glenn on her first claim, but against her on her second claim, Judge Story said that their reasons for firing Ms. Glenn were not legit, but then he said they could be legit and they were legit on her second claim. He ground up perfectly good steak and made it into hamburger. So I like him for what he did for Ms. Glenn, but I don't like the reasoning he used.

The Equal Protection Claim

What differences qualify for an equal protection claim? Anything that the Government singles out for different treatment. If the Government makes a law that singles out redheads, or people whose last name ends in W, or people over 5'9" -- then the courts will look at it.

Here, Ms. Glenn raised two items of difference: gender identity and medical condition.

In legal terms, an equal protection claim must allege that the plaintiff is a member of an identifiable group, was subjected to differential treatment from others "similarly situated," and the difference in treatment was based on his or her membership in that group.

Those little words "similarly situated" -- the Court went out of its way to point out that Glenn's work was about average, and that only two other employees had been terminated during Brumby's long career, both of whom had very clear performance issues. If there had been any work performance issue, that could have been used to argue that Glenn wasn't "similarly situated."

Most employers who terminate an employee will come up with some work performance issues. They know that, even if the law seems to be with them, the times are changing. It isn't that hard to be critical and point out some flaws in anyone's work. Of course, the difficulty from the employer's point of view is that if they give satisfactory reviews all along, and then all of a sudden, after they find out the employee is trans those reviews take a nose dive, that can be used as a sign that the employer was manufacturing a case. So performance reviews are a double-edged sword. A smart but evil employer will wait for a few performance review cycles before terminating. (A savvy employee will refuse to sign the review, and issue a rebuttal letter, and salt away a witness statement or two.)

Standard of Review

Now we get to a concept that has crossed the eyes of generations of law students: the "standard of review."

What this means is how much evidence do you have to have, and of what quality?

The "standard of review" is just like "burden of proof." In other words, you all know from watching TV that, in a criminal trial, the prosecution has to prove the crime, and not just a little bit. They have to prove it "beyond a reasonable doubt." That means that if jurors have any doubt in their mind that the defendant did it, any reasonable doubt, then the person has to be declared not guilty. The standard for reviewing the evidence is "beyond a reasonable doubt." It's a tough standard to meet.

By contrast, in a civil case, like one involving a personal injury or a contract, the standard for reviewing the evidence is "preponderance of the evidence," meaning that it's enough if the evidence shows that the charge is more likely than not. It's an easier standard to meet.

In a constitutional case, when the judges review the actions of a government official or the words of a law to decide if they violated the Constitution, the evidence must show that the classifications used by the Government are rationally related to a legitimate government purpose.

In other words, the Government can't just do crazy stuff and get away with it. It has to be related to some legit purpose.

But that's the minimum standard. It's easy to come up with some legit purpose. For example, "public safety" is the perfect catch-all. Just cite "public safety," mention 9/11, and the judges will stand up and salute pretty much every time. Government acts judged under the minimum standard of review are usually given the OK by the courts.

For certain kinds of Government actions, specifically those based on race, the U.S. Courts have been very suspicious since the 1950s. A lot of Southern States had laws making distinctions based on race, and they came up with some pretty ingenious justifications for them. So the courts said they weren't going to go with the minimum standard for cases like that. No siree, they were going to strictly scrutinize Government acts involving race, and look to make sure that those laws were narrowly tailored to meet a compelling government purpose.

Government acts judged under the strict scrutiny standard of review are usually found unconstitutional by the courts.

But the U.S. Supreme Court got very nervous about the standard of review used for Government acts based on sex and gender. After all, they didn't want to invalidate all such laws, because there is a significant difference between men and women. So they came up with an "intermediate" level of review.

In a sex discrimination claim under the Equal Protection Clause, the Government classification must be "substantially related to an important government objective."

The words of this formulation aren't the most important thing. The most important thing to understand about this "intermediate" level of review is that it pretty much allows courts to do what they want in terms of upholding or, conversely, invalidating the law. It's not a rubber stamp, but it's not an automatic reject button either.

Thus, the question before Judge Story was whether giving Ms. Glenn the boot was substantially related to an important government objective. In fact, some courts have said the government objective should not only be "important," but even "exceedingly persuasive." The law is a word game.

In other words, did Brumby have a good reason for kicking Ms. Glenn out? Not just any reason, but an "important" and "exceedingly persuasive" one, though it didn't have to be "compelling."

What Is Sex Discrimination?

Next, the Court faced a barrage of defense arguments that firing a transgender person isn't really "sex" discrimination. Rather it's "sex change" discrimination, to put it in rather inappropriate terms. We're not firing you because you're a woman, Ms. Glenn, we're firing you because you changed from male to female.

This old line worked for many years in the courts, but stopped working after the US Supreme Court decided that sex discrimination included "sex stereotyping" -- deciding that women couldn't do certain jobs based on stereotypical ideas about women. Or firing them because they didn't fit those stereotypical ideas -- looking and talking and acting like the "women" in men's imagination. And the same idea was applied to men -- you couldn't fire a man because he didn't look and talk and act like the "men" in people's imagination.

That case is called Price-Waterhouse, after the defunct accounting firm that denied partnership to a woman who didn't fit their ideals of femininity, even though being feminine was pretty much a disqualification for the tough cookies expected to fill partnership roles. I usually don't burden you with case names, but this one is key, so it's worth remembering. Price-Waterhouse v. Hopkins.

Because of the Price-Waterhouse case, a number of courts around the country decided that the old rules about anti-trans discrimination had gone out the window, because it was getting harder and harder to draw lines. Under Price-Waterhouse, you can't fire a masculine woman for being unwomanly, so why then should it be okay to fire a female-to-male transsexual?

And so, Judge Story ruled, firing Ms. Glenn for being transgender is illegal "sex stereotyping."

Some Odd-looking Fish Under The Surface

This is kind of a workaround, though. Under the "sex stereotyping" theory, conservatives still don't have to admit that anti-trans discrimination is "sex discrimination," except as a kind of exception created by the Supreme Court. And that's a problem, because the appeals courts can just say that extending sex stereotyping to transgender people goes too far, as one court has said. "Difference in kind, rather than difference in quality," goes the argument. Masculine women is one thing, and we can protect them, transgenders are another matter and we can't protect them, they say.

Judge Story dismissed this argument by saying that the case making this argument relied on older cases. Anyway, he said, it is too hard to draw a line between trans and non-trans sex stereotyping cases, apparently because gender is a continuum. He also dismissed the idea that what Congress meant in 1964 has any bearing on the issue.

All good reasoning, and yet, he didn't act on this reasoning.

In other words, he still relied on the "sex stereotyping" workaround, instead of the idea that anti-trans discrimination is sex discrimination. And that leaves the door open for more conservative appellate courts to shut down the "sex stereotyping" door for trans workers.

I much prefer the ruling in the Schroer case, where the judge said that changing sex, like changing religion, doesn't change the discrimination. That logic is difficult to argue against. Judge Story mentioned the Schroer case, but didn't bring it up its reasoning on that point.

The other weird thing about the Glenn opinion is that it relies on a case from the Tenth Circuit, over in the Western/Mid-Western part of the country, that says that transgender people might fit within the sex stereotyping thing -- maybe, maybe not -- but said it was okay to fire the worker in that case because she might have to use the bathroom. That's a problem, as we will see below.

That Tenth Circuit case also does a strange switcheroo thing with the word "sex." It says that the old anti-trans cases are outmoded. Those old cases okayed firing trans people because Congress never mentioned them in 1964, when it passed the federal civil rights act. But the Tenth Circuit, recognizing that today's conservative legal philosophy doesn't give a rat's ass about what Congress or the Founding Fathers "intended," said that the word "sex" means only the biological difference between men and women if you look in the dictionary.

Well, I don't know if you've looked in the dictionary recently, but it's pretty well known that the word "sex" today includes the idea of gender. I wrote a whole article tracking the history of the word "sex" from its invention in the 1500s to today, and how it relates to the concept known today as "transgender." You can see it here.

And, in fact, Judge Story said exactly that, quoting a prior court ruling:

However, the Supreme Court in Price Waterhouse "established that Title VII's reference to 'sex' encompasses both the biological differences between men and women, and gender discrimination, that is, discrimination based on a failure to conform
to stereotypical gender norms."

So if Judge Story agrees that "sex discrimination" includes both sex and gender, why is he relying on a "sex stereotyping" workaround that can close up like a trap door? Why doesn't he just say that discrimination against a trans workers is "sex discrimination" plain and simple?

I'm guessing that Judge Story, a Clinton appointee, is well aware that he's playing in the conservative sandbox in Georgia. While I might like a simple, clear and direct ruling that anti-trans discrimination is sex discrimination, and I think the history of the word "sex" justifies it, the 11th Circuit Court of Appeals might be all too happy to try to kick that one to pieces. And then again, he might not have read my law review article. Ah well.

One question he didn't address: Is "sex stereotyping" a concept that applies to the Equal Protection Clause of the US Constitution? Isn't it something that the US Supreme Court invented for purposes of analysis of the federal civil rights statute? Gosh, I hope not, but I'm left wondering, and court opinions aren't supposed to leave you wondering.

There's some odd fish down there under the surface.

Meanwhile, Back In Equal Protection Land, Judge Story Leaves An Enormous Hole

So Judge Story solved the problem of whether anti-trans discrimination is based on sex. And yet, he still had to decide whether Mr. Brumby had some "important" and "exceedingly persuasive" reason for firing Ms. Glenn.

Mr. Brumby's lawyers apparently totally forgot to discuss the question, assuming that Judge Story was going to rule that Ms. Glenn was not entitled to any protection because of the old "sex change" vs. "sex" argument. Well, defense attorneys should know what happens when you assume. But Judge Story threw them a lifeline, and despite their lack of diligence, looked at some of the reasons for termination they mentioned in other contexts.

Mr. Brumby's lawyers argued that one legitimate government purpose is the avoidance of lawsuits against the government.

Defendant argues that Plaintiff's continued employment at OLC while presenting as a woman without undergoing genital reassignment surgery, could expose the government to suits for invasion of privacy or sexual harassment. Defendant argues that although there were single-occupancy restrooms available in the OLC office, Plaintiff was not required to use these and may have used the multi-person restrooms located elsewhere in the Georgia Capitol Building.

But Judge Story said this wasn't a good argument because there was no evidence that Brumby was, in fact, concerned with Plaintiff's restroom usage, or discussed Plaintiff's restroom usage with her or anyone else before her termination.

In other words, in another case, in which the employer manufactures a couple of memos raising concerns about lawsuits based on bathroom use, that might constitute a defense.

That's not so good.

In fact, Judge Story specifically admired a few other cases in which the trans workers was fired because of bathroom concerns.

In fact, he specifically quoted the that crazy Tenth Circuit case:

However far Price Waterhouse reaches, this court cannot conclude it requires employers to allow biological males to use women's restrooms. Use of a restroom designated for the opposite sex does not constitute a mere failure to conform to sex stereotypes.

See? This is why I don't like the "sex stereotyping" theory so much. It's not just that it leaves the bathroom question wide open. It's also that it hypothesizes trans women as men, and trans men as women.

Under this reasoning, a trans worker must come up with alternatives to using multi-use public bathrooms. I have addressed this issue in my book on Transgender Workplace Diversity, because the social needs of employers have to be addressed, as well as the legal ones, and there are many solutions. But it's not necessary for the courts, however, to mandate this, and it leads to legal theories that are out of step with the reality of the lived experience of transgender people in the workplace.

Likewise, this Court does not conclude that Price Waterhouse requires employers to allow individuals with male genitalia to use women's restrooms. However, that is not the situation presented by the facts of this case. The evidence demonstrates that the OLC contained four private bathrooms.

Does this language mean that trans people must use private bathrooms for the rest of their career? That would be silly. Does it mean that employers get to ask medical questions about their trans workers' genitalia?

My experience, working with many corporations, shows that the concerns, if any, among co-workers usually are completely gone within 90 days of transition. That's a time considerably shorter than the one year of living full-time in the new gender before surgery, as required by the WPATH standards.

More Holes

Judge Story also addressed two concerns briefly raised by the defense. The first was regarding the good operation of the Office of Legislative Counsel. The second was the Office having the confidence of the legislators of the State of Georgia. Judge Story said these were pretexts, and not the real reasons for dismissal.

These are similar to an often-raised defense, called the "business necessity" defense. Its usage is more complex than I can discuss here.

The important thing to understand is that such concerns can be recognized as legitimate concerns, but disallowed in a particular case, as Judge Story did. Or, better, they can be recognized as "illegitimate," and recognized as nothing more than discriminatory nonsense, as Judge Robertson did in the Schroer case.

I think the "business necessity" defense is nonsense. It's nothing more than "work performance" dressed up in a scary costume. Yes, if someone, trans or nontrans, is not getting the job done, then you can fire them. There's no reason to make a necessity out of it. It's all too true, here as elsewhere, that necessity is the mother of invention.

But putting aside bad puns, look what Judge Story would allow future employers to get away with:

Plaintiff's immediate supervisor did not believe that she should be fired. Further, when Brumby asked two OLC attorneys what they thought of working with an individual who was undergoing a gender transition, neither expressed concerns. In regards to Georgia legislators, the record indicates that Brumby communicated his intent to fire Plaintiff to the Speaker of the Georgia House of Representative, the Lieutenant Governor, and the
President Pro Tempore of the State Senate, and the record does not indicate that any of the three expressed concern that their confidence in the OLC would diminish if Plaintiff remained employed. To the extent that the record contains any evidence that legislators would lose "confidence" in the OLC, it is in the form of Brumby's statement that some legislators would believe that Glenn's gender transition was immoral, unnatural, and "ultraliberal."

Okay, that's nice. But what if they had concerns about working with a transgender co-worker, or with a department that had a transgender worker? Can you then throw her out? Judge Story left that point a bit unclear.

Summary of Ms. Glenn's First Claim

This brings us to the end of Judge Story's opinion on Ms. Glenn's first claim, that of discrimination in violation of the US Constitution's Equal Protection Clause of the 14th Amendment. In summary, he said that discrimination against Ms. Glenn based on her gender transition was a violation of the Equal Protection Clause because it is "sex stereotyping," and that none of the reasons given by the defense were important or exceedingly persuasive.

However, Judge Story's ruling, however welcome, comes with some rather large holes. Ms. Glenn is protected as a man, rather than as a woman. Future defenses based on potential lawsuits, bathrooms and business necessity are specifically validated, though found to be unfounded by the evidence in this particular case.

Lastly, it is unclear whether this case would be useful precedent for cases based on Title VII of the federal civil rights statute. It is based on the Constitution, which has some rather different rules than ordinary statutes.

Remaining to be discussed in my next post -- Judge Story found in favor of all of the defense arguments (potential lawsuits, bathrooms and business necessity) with regard to Ms. Glenn's second count on medical discrimination. Therefore, she lost the second claim. It makes no sense, but there it is. It also makes a future Title VII case in the 11th Circuit a minefield.

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I'm curious to know what president appointed Judge Story to the federal bench?

Dan Massey | July 8, 2010 4:06 PM

Clinton. From Wikipedia:

Story was a federal judge on the United States District Court for the Northern District of Georgia. Story was nominated by President Bill Clinton on September 15, 1997, to a seat vacated by William C. O'Kelley. He was confirmed by the United States Senate on January 28, 1998, and received his commission on February 4, 1998.

I'm confused. This case was decided on equal protection grounds and it used the 14th for it. The DOMA case also found that equal protection was violated, but it used the 5th Amendment. Which one is it actually in and what's the difference?

The 14th Amendment applies only to the States. The 5th Amendment applies only to the Federal Government. The Commonwealth decision uses the 14th Amendment because it involves a State suing because DOMA forces it to violate the 14th Amendment. The Gill decision uses the 5th Amendment because it involves a federal employee suing the federal government for benefits.

Interestingly, the 5th Amendment doesn't have an equal protection clause, but the Supreme Court read it into the 5th Amendment a couple of decades ago.

Thank you for pointing this out, Dr. Weiss:

Ms. Glenn is protected as a man, rather than as a woman.

There was something about your previous post on this matter that made me quite uneasy; this is it.

If we are speaking from the perspective that Ms. Glenn is female, but is being protected on the basis of sex discrimination--I believe your terminology, as most, is less than rigorous on this point--then, on its face, the decision is transphobic.

That is, it is treating Ms. Glenn as a man/male--refusing to accept her as the female she is, as I believe from the coverage she is changing her sex to conform to.

Yes, reading the coverage, I understand she has referred to herself as transgender.

From this perspective, that Ms. Glenn is transgender not transsexual, as this analysis proceeds, then the decision is precisely what all those who argue that it is the social/gender role that is important, require.

After all, there is no such thing, really, as sex. As you point out in your piece, and in your scholarship, Dr. Weiss, sex has come to mean, nay, come to BE, gender.

I would argue, however, that even if, in the minds of some, possibly including yourself, that


it really doesn't make it so. And historically, just because gender anachronistically claims it has been since the beginning of time, doesn't make it so--anymore than Judith Butler can.

This is reification, plain and difficult.

What does this mean, practically?

First, look at those transsexual women who transitioned their social role AND had surgery before gender identity reified, along with gender.

Second, look at the present case.

This is precisely the political/legal expedience transgender people are calling for.

Why be concerned that it is grounded in the fact that Ms. Glenn is still a man, i.e. still male?

For all those who have erased transsexual women, that our physical urgency to change sex is not only non-existent, but stands in the way of those who will not give up their male [privilege], this is the promised land.

It is really quite petty to cavil at such a small thing as a penis.

Possibly a better term, instead of transphobic above, in describing the decision, might be cissexist.