LESBIAN/GAY L AW JanuaryN 2012 O T E S 03 11th Circuit 10 Maine Supreme 17 New Jersey Transgender Ruling Judicial Court Superior Court Equal Protection Workplace Gestational Discrimination Surrogacy 05 Obama Administration 11 Florida Court 20 California Court Global LGBT Rights of Appeals of Appeal Parental Rights Non-Adoptive 06 11th Circuit First Same-Sex Co-Parents Amendment Ruling 14 California Anti-Gay Appellate Court 21 Texas U.S. Distict Counseling Non-Consensual Court Ruling Oral Copulation High School 09 6th Circuit “Outing” Case Lawrence- 16 Connecticut Based Challenge Appellate Ruling Incest Conviction Loss of Consortium © Lesbian/Gay Law Notes & the Lesbian/Gay Law Notes Podcast are Publications of the LeGaL Foundation. LESBIAN/GAY DEPARTMENTS 22 Federal Civil Litigation Notes L AW N O T E S 25 Federal Criminal Litigation Editor-in-Chief Notes Prof. Arthur S. Leonard New York Law School 25 State Criminal Litigation 185 W. 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Law Notes Podcast PROFESSOR LEONARD, LEGAL’S FOUNDER, To listen to/download the HAS WRIttEN NUMEROUS ARTICLES ON Lesbian/Gay Law Notes Podcast launch iTunes, EMPLOYMENT LAW, AIDS LAW, AND or point your browser to LESBIAN AND GAY LAW. ART IS A FREQUENT http://legal.podbean.com. NATIONAL SPOKESPERSON ON SEXUAL ORIENTATION LAW, AND AN EXPERT ON © 2012 THE RAPIDLY EMERGING AREA OF GAY The LeGaL Foundation FAMILY LAW. HE IS ALSO A CONTRIBUTING of the LGBT Bar Association WRITER FOR GAY CITY NEWS, NEW YORK’S of Greater New York BI-WEEKLY LESBIAN AND GAY NEWSPAPER. http://www.le-gal.org TO LEARN MORE ABOUT LEGAL, PLEASE VISIT HttP://WWW.LE-GAL.ORG. ISSN 8755-9021 2 | Lesbian/Gay Law Notes | January 2012 11th Circuit Rules that Termination of Trans- gender Employee for Gender Non-Conformity Violates the Equal Protection Clause n Glenn v. Brumby, 2011 WL Glenn alleged two claims of dis- pensated for being a woman.” The 6029978, the U.S. Court of Ap- crimination under the Equal Protec- Supreme Court agreed that such Ipeals for the 11th Circuit ruled tion Clause. First, Glenn alleged that comments were indicative of dis- on December 6 that a government Brumby discriminated against her criminatory intent based on gender, agent vio-lates the Equal Protection on the basis of her sex and her failure and held that Title VII barred not Clause’s prohibition of sex-based to conform to gender stereotypes. just discrimination because of bio- discrimination when firing a trans- Second, Glenn alleged discrimina- logical sex, but also gender stereo- gender or transsexual employee be- tion on the basis of her medical con- typing – that is, failing to act and cause of his or her gender non-con- dition, specifically Gender Identity appear according to expectations formity. In reaching its decision, the Disorder, with which she had been defined by gender. court, for lack of an appropriate le- diagnosed in 2005. The district Judge Barkett explained why gal term, emphatically demonstrated court granted Glenn summary judg- discrimination based on one’s that it “gets it” when it comes to ap- ment on the first claim but granted transgender status constitutes dis- plying constitutional protections to summary judgment to Brumby on crimination based on gender ste- the transgender community. the second. Brumby appealed the reotypes: “A person is defined as The plaintiff, Vandiver Eliza- court’s sex-discrimination ruling transgender precisely because of beth Glenn, who was born a bio- and Glenn cross-appealed on her the perception that his or her be- logical male, intended to transi- medical condition claim. havior transgresses gender ste- tion from male to female during On appeal, Circuit Judge Rose- reotypes…. Accord-ingly, dis- her tenure as an editor at Geor- mary Barkett noted at the outset crimination against a transgender gia Assembly’s Office of Legis- that heightened scrutiny applies individual because of her gender lative Counsel (OLC). The head to legislative classifications based non-conformity is sex discrimina- of the OLC, Sewell Brumby, ter- on gender or sex. The court then tion, whether it’s described as be- minated Glenn soon after learn- summed up the relevant question ing on the basis of sex or gender.” ing that Glenn was ready to begin as whether discriminating against The court buttressed its conclu- her transition because, according someone on the basis of his or her sion with citations to several other to Brumby, the “intended gender gen-der non-conformity constitutes circuit and district court decisions transition was inappropri-ate, that sex-based discrimination under the that likewise determined that dis- it would be disruptive, that some Equal Protection Clause. crimination and harassment lev- people would view it as a moral is- The court first considered the eled against transgender individu- sue, and that it would make Glenn’s case of Price Waterhouse v. Hop- als was actionable as sex-based coworkers uncomfort-able.” The kins, 490 U.S. 228 (1989), in which discrimination. And in a passage termination was the culmination the U.S. Supreme Court held that that rings like a clarion call for of prior disapproval by Glenn’s dis-criminating against a person equality, the court continued: “All employer of her gender nonconfor- because of their failure to conform persons, whether transgender or mity and her plans to tran-sition. to gender stereotypes can be a form not, are protected from discrimi- For example, Brumby had been of sex discrimination in violation of nation on the basis of gender ste- asked to leave the office when she Title VII of the Civil Rights Act of reotype…. An individual cannot presented as a woman on Hallow- 1964. There, the court considered be punished because of his or her een, with Brumby stating that it allegations that a senior manager at perceived gender non-conformity. was “unsettling” and “unnatural” Price Waterhouse was denied part- Because these protec-tions are af- for someone with male sex organs nership in the firm because she was forded to everyone, they cannot be to be dressed in women’s clothing. considered “macho” and “overcom- denied to a transgender individual. January 2012 | Lesbian/Gay Law Notes | 3 The nature of the discrimination is Brumby’s intent overwhelmed that less an “important” government the same; it may differ in degree mere speculation. And, moreover, purpose, therefore affirmed the but not in kind, and discrimination the record indicated that only sin- district’s court’s finding on Glenn’s on this basis is a form of sex-based gle-occupancy restrooms existed sex discrimination claim. discrimination that is subject to at the employment location, which Because its granting of sum- heightened scrutiny under the is a relatively devastating retort to mary judgment on the sex dis- Equal Protection Clause.” even fictional concerns about rest- crimination claim provided Glenn The court then turned to the fac- room use and related lawsuits. all the relief that she sought, the tual record to determine whether All told, the court pointed out court did not address Glenn’s Glenn was, in fact, fired on the that Brumby’s entire defense rested cross-appeal concerning her med- basis of gender stereotyping. The on the notion that Glenn was not a ical condition claim. court needed to look no further member of a protected class and Glenn was represented by than Brumby’s deposition testi- that only a rational basis need be Lambda Legal attorneys Cole mony in which he testified to fir- advanced for the discrimination. Thaler, Gregory R. Nevins and M. Dru ing Glenn because he considered it The court, clearly unimpressed Levasseur. —Brad Snyder “inap-propriate” for her to appear with Brumby’s efforts to demon- at work dressed as a woman and strate anything that could qualify Mr. Snyder is the Executive Director that he found it “unsettling” and as a governmental purpose much of the LeGaL Foundation. “unnatural” that Glenn would ap- pear wear-ing women’s clothing while admitting that Glenn’s tran- sition was the reason for her firing. A person is defined as trans- Thus, the court concluded that the testimony provided “ample direct evidence” to support the district gender precisely because court’s conclusion that Brumby acted on the basis of Glenn’s gen- of the perception that his der non-conformity. Unlike a Title VII case, where or her behavior transgresses the demonstration of discrimina- tory intent would end the analysis, the court noted that in an Equal gender stereotypes. ... Pro-tection Clause case in which heightened scrutiny applies it was Accordingly, discrimination bound to consider whether Brumby had a “sufficiently important gov- against a transgender ern-mental interest” for the dis- criminatory conduct. On appeal, Brumby offered individual because of her only one (sadly familiar) justifica- tion: his alleged concern that oth- gender non-conformity is er women might object to Glenn’s rest-room use.