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A S A P ®
A Timely Analysis of Legal Developments
The typically conservative Eleventh Circuit Court of Appeals recently found in favor of a transgender
employee claiming sex discrimination when her employer red her after she announced plans to
undergo a gender transition. The Georgia General Assembly’s Ofce of Legislative Counsel (OLC)
hired Plaintiff Vandiver Elizabeth Glenn in 2005 as an editor.1 At that time, Glenn presented as a
man named Glenn Morrison. Approximately one year into her employment with the OLC, Glenn
told her supervisor that she was a transsexual and came dressed to the ofce’s Halloween party
as a woman. In 2007, Glenn announced she would be transitioning from a male to a female. For
Glenn, this meant she would be coming to the ofce dressed as a woman and would legally adopt
a female name. Following this announcement, the head of the OLC, Brumby terminated Glenn’s
employment.2
The District Court Case
Glenn sued Brumby under the Equal Protection Clause of the U.S. Constitution, claiming Brumby
discriminated against her on the basis of her sex, including both her gender identity and her failure
to conform to the male sex stereotype (
i.e
., behave and dress in “traditional male” ways) that
Brumby expected. Unlike a typical sex discrimination case where a plaintiff claims a violation of
Title VII of the Civil Rights Act of 1964, Glenn claimed government action (
i.e.
, her state employer’s
termination decision) resulted in her discharge. Consequently, Glenn was entitled to sue her
employer under the Equal Protection Clause on the basis that the state denied rights she was
entitled to under the Fourteenth Amendment.3 Glenn was successful on her claim in the district
court and Brumby appealed to the Eleventh Circuit Court of Appeals.4
The Appeal to the Eleventh Circuit Court of Appeals
On appeal, the Eleventh Circuit rst examined whether discrimination against an individual
because of his or her gender nonconformity constitutes sex discrimination under the Equal
Protection Clause. The court, citing the U.S. Supreme Court and several other appellate courts,
concluded the answer to this question is “yes.”5 The court reasoned that:
A person is dened as transgender precisely because of the perception that
his or her behavior transgresses gender stereotypes. The very acts that dene
December 2011 11th Circuit Rules for Transgender Employee in Sex
Discrimination Case
By Dionysia Johnson -Massie and Gina Cook
