Transsexual Employee Covered by 14th Amendment’s Equal Protection Clause

A public employee was terminated after she alerted her supervisors of her intent to transition from a man to a woman and come to work as a woman. The decision to terminate the employee was based on the employer’s perception of the employee as “a man dressed as a woman and made up as a woman” and on the “sheer fact of the transition.” The employee sued the employer, alleging claims of sex discrimination in violation of the Equal Protection Clause of the 14th Amendment. The U.S. Court of Appeals for the Eleventh Circuit held that discriminating against someone on the basis of his or her gender nonconformity constitutes sex-based discrimination under the Equal Protection Clause. In effect, discriminating against someone who fails to act according to socially prescribed gender roles constitutes actionable discrimination. Public employers should be aware that the Equal Protection Clause provides another legal basis for some employees, including individuals who otherwise may not be able to claim protected status under Title VII of the Civil Rights Act of 1964, as amended, to contest gender discrimination in the employment context. While this opinion is somewhat limited to public employers, all employers should also refrain from taking disciplinary action against individuals solely for not conforming with societal gender norms, as similar legal theories have been successfully litigated under Title VII.

Glenn v. Brumby, No. 10-14833 & No. 10-15015 (11th Cir. Dec. 6, 2011)