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Transgender Discrimination is Unconstitutional, 11th Cir. Rules

By Stephanie Rabiner, Esq. on December 07, 2011 5:48 AM

Is transgender discrimination sex discrimination? And if so, is it prohibited by the Constitution?

The 11th Circuit answered both of these questions in the affirmative on Tuesday, ruling for Vandy Beth Glenn, a transgender woman fired from her job with Georgia's General Assembly. Glenn had sued the state, arguing that her termination violated the Constitution's Equal Protection Clause.

The court unanimously agreed, pointing to a cache of prior case law.

Those cases included one in which the Supreme Court found that discrimination on the basis of gender stereotypes is sex-based discrimination. In that case, a woman was denied partnership because she was too "macho."

Applying this to Vandy Beth Glenn, the 11th Circuit writes, "A person is defined as transgender precisely because of the perception that his or her behavior transgresses gender stereotypes." Transgender discrimination is thus the result of a "perceived gender-nonconformity."

A number of other courts agree with this assessment. The 9th Circuit with regards to the Gender Motivated Violence Act. The 1st Circuit when reviewing the Fair Housing Act. And the 6th Circuit when reviewing a case under workplace law Title VII.

What makes this case slightly more unique is that it was filed against a government entity. The government is restricted by the Equal Protection Clause, which outlaws sex discrimination that is not backed by "an important governmental objective."

The court found that Vandy Beth Glenn's firing was unjustified and thus unconstitutional. In other words, the Equal Protection Clause prohibits sex discrimination. And because transgender discrimination is sex discrimination, it, too, is prohibited by the Constitution.

Well, at least when involving government employees.

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