Unlike private sector employers, the U.S. Constitution requires that public employers provide equal protection to all persons. Under federal Section 1983 claims, public employees can sue their employers for discrimination based on these constitutional protections. Earlier this month, the Eleventh Circuit Court of Appeals upheld a verdict applying these equal protection principles to a transgendered employee who claimed she was terminated due to her sex change.
In Glenn v. Brumby, the plaintiff was a male employee of the Georgia General Assembly. She began sex reassignment therapy, and was ultimately terminated because her supervisor considered her behavior to be immoral and damaging to office morale. She sued, alleging sex discrimination under Section 1983.
The Eleventh Circuit, citing consistent decisions in a number of other federal appellate courts, upheld a grant of summary judgment for the plaintiff. In its opinion, the court noted that constitutional equal protection requirements apply to both sex and gender, including instances of perceived gender non-conformity. In order to exclude someone from employment based on gender stereotypes, the government employer bears a high burden of judicial scrutiny of the reasons for the discrimination. In this case, the state could not articulate legitimate reasons meeting this burden.
This case has limited applicability to private sector employers. While Title VII does not identify transgendered persons as a protected category, the law does provide some protection against discrimination based on required adherence to gender stereotypes. Employers should consult with legal counsel when faced with workplace issues involving employees undergoing gender reassignment procedures.