What happened. In 2005, “Gerry” was diagnosed with gender identity disorder (GID), a psychiatric condition characterized by a strong, persistent cross-gender identification, a sense that one’s biological gender is inappropriate, and consequent social impairment. Over the next year, Gerry underwent a series of treatments to transition from male to female, including electrolysis to remove facial hair, hormone treatment, plastic surgery, and psychiatric therapy to help her adjust to living as a woman.

In October 2005, Gerry was hired as an editor by the Georgia General Assembly’s Office of Legislative Counsel (OLC). To get the job, she had to take a test on grammar and proofreading; she did very well and was recommended for the position, which involved drafting bills for legislators, code revision, and publication of Georgia session laws. Gerry informed her immediate supervisor that she was transitioning from male to female, but during her first year on the job she came to work dressed as a man.

On October 31, 2006, however, she dressed herself as a woman. The head of the OLC, “Bob,” told her that her appearance was inappropriate and asked her to leave the office. Gerry’s supervisor informed Bob that Gerry was undergoing gender transition, but Gerry went back to dressing as a man for the next few months.

In the fall of 2007, Gerry informed her supervisor that she would now be presenting herself as a woman and changing her legal name. The supervisor told Bob, who at first said that he supported sex changes within the workplace but later told the supervisor that he was going to fire Gerry. The supervisor protested because Gerry’s work was excellent. On October 16, Bob informed Gerry that he was terminating her because her gender transition was inappropriate and disruptive and because some legislators considered the transition immoral. Gerry sued Bob in his official capacity for sex discrimination. Bob asked the court to dismiss the case.

What the court said. Gerry brought her claims under 42 U.S.C. Sec. 1983, which allows lawsuits by individuals who are deprived of their Constitutional rights. Gerry claimed that Bob violated her rights granted by the Equal Protection Clause of the 14th Amendment of the Constitution, which mandates that all similarly situated people should be treated the same way. Gerry claimed that she was treated differently from the other OLC employees based on her sex.

The court first had to determine whether firing a person for being transgendered qualified as sex discrimination. In this case, the firing was due to Gerry’s failure to conform to gender stereotypes. Based on that fact and the court’s reading of cases that have considered similar issues, the court decided that employment decisions based on transgendered status could constitute sex discrimination.

In Gerry’s case, Bob fired her because of her intention to present herself as a woman in the workplace. Bob actually told her that he was not firing her because of her performance but because he was unsettled by the thought of a person with male sexual organs in women’s clothing. Bob argued that he terminated Gerry for undergoing a gender transition, not for failing to conform to male gender stereotypes. But he did not come up with any legitimate reasons for why Gerry’s dressing as a woman would be a problem at work, and he did concede that Gerry’s appearance was a motivating factor in her termination.

The one real concern Bob presented to the court was his fear that Gerry’s use of workplace restrooms could present a problem. But he never mentioned this to Gerry as a reason for firing her and only brought it up after the fact. The court held that Bob did not prove that he had a legitimate non-discriminatory reason for the termination, so it found for Gerry. Vandiver v. Brumby, U.S. District Court for the Northern District of Georgia, No. 1:08-CV-2360-RWS (7/2/10)
 
Point to remember.Many gay, lesbian, and transgender individuals have successfully asserted claims of discrimination on the basis of an employer's gender stereotyping of characteristics or traits associated with a particular gender.