On December 6, 2011, the United States Court of Appeals for the 11th Circuit (which includes Georgia), issued the decision in Glenn v. Brumby, which established, for Georgia at least, a controversial precedent. Vandy Beth Glenn began work in the Georgia legislature as a male, and when she was fired from her position in the Georgia legislature, had transitioned to a female. Defendant, the General Assembly’s Legislative Counsel, Sewell Brumby, fired Ms. Glenn in October 2007 after telling her that she was “immoral” and her transition was unacceptable and inappropriate. Both the Georgia District Court and the 11th Circuit Court of Appeals found that Ms. Glenn’s rights were violated by Defendant Brumby under the Equal Protection Clause of the United States Constitution by terminating Glenn’s employment because of her sex. In the opinion, the Court of Appeals specifically held that “[a]ll persons, whether transgender or not, are protected from discrimination on the basis of gender stereotype.” Glenn v. Brumby, 663 F.3d 1312 (11th Cir. 2011).
Although decided under the Equal Protection Clause, which only applies to public employers (like the government), the Court of Appeals in Brumby relied heavily on precedent decided under Title VII of the Civil Rights Act of 1964 (“Title VII”), which applies to all employers that employ 15 or more employees and prohibits discrimination based on the employee’s race, color, national origin, sex, or religion. While not conclusive, the implication is that the Brumby decision may continue expanding the definition of “sex” from meaning simply “male and female equality” (its historic meaning) to include protection against gender stereotyping, including gender stereotyping against transsexual individuals.
Practically, this means that any policies adopted by employers with 15 or more employees that simply prohibit discrimination (including harassment) based on sex alone may not be enough under Title VII. Even more practically, this means that all employers with 15 or more employees may need to review their employment practices, manuals, or policies to ensure those practices do not discriminate against or improperly impact employees based on that employee’s gender stereotypes and not just on that employee’s sex alone.