The federal appeals court in Atlanta appears ready to grant a legal victory to Vandy Beth Glenn, a transgender woman who was fired as a legislative editor at the General Assembly after she disclosed she was going to make the transition from man to woman.
Two of three 11th U.S. Circuit Court of Appeals judges hearing the case Thursday indicated U.S. Supreme Court precedents support a lower-court judge’s finding that Glenn was the subject of sex discrimination.
“You can’t discriminate against someone because they don’t behave the way you expect them to behave because of their sex,” Judge Bill Pryor told lawyer Richard Sheinis, who represented the state.
Judge Rosemary Barkett agreed and repeatedly told Sheinis she couldn’t understand the basis of the state’s arguments.
Sheinis had argued that Glenn’s firing was not motivated by gender stereotyping, but instead by her transitioning from man to woman while working at the Office of Legislative Counsel.
The 11th Circuit is considering the state’s appeal of a ruling by U.S. District Judge Richard Story, who found Glenn was the victim of sex discrimination.
Story ordered Glenn returned to her job and for the state to no longer discriminate against her after she returns, but that decision was stayed pending the outcome of the appeal, said Glenn’s lawyer, Gregory Nevins of the Lambda Legal Defense and Educational Fund.
The 11th Circuit’s ruling is expected in the coming months.
Glenn was hired to edit the text of legislation in 2005 when she was a man named Glenn Morrison. Earlier that year, however, Glenn had been found to have gender identity disorder, a psychiatric diagnosis of those with a strong cross-gender identification and persistent discomfort with their own sex. Her doctor recommended Glenn make the transition to become a woman.
Glenn began living outside the workplace as a woman, underwent electrolysis to remove facial hair and began hormone therapy to make her body more feminine and suppress testosterone. She underwent surgeries to lift her brow and narrowed her jaw line.
In 2006, Glenn told her direct supervisor she was in the process of becoming a woman. That Halloween, she made her first appearance at work dressed as a woman. But Sewell Brumby, then head of the Office of Legislative Counsel, found Glenn’s appearance inappropriate and asked her to leave.
“It’s unsettling to think of someone dressed in women’s clothing with male sexual organs inside that clothing,” Brumby said in pretrial testimony, explaining his decision. It’s “unnatural,” he said.
At that time, Brumby did not take any adverse action against Glenn, who continued to come to work dressed as a man.
But in the fall of 2007, Glenn told her supervisor she would begin coming to work as a woman and would be changing her legal name to Vandiver Elizabeth Glenn. She provided the supervisor photos of herself as a woman and literature about gender identification disorder.
The supervisor told this to Brumby and gave him the written materials and photos.
On Oct. 16, 2007, Brumby called Glenn into his office and asked if she fully intended to become a woman. When Glenn said she did, Brumby fired her.
Brumby, who headed the counsel’s office from 1978 until he retired in August, also testified that he was concerned that “some members of the Legislature would view that taking place within our office as perhaps immoral, perhaps unnatural and perhaps, if you will, liberal or ultra-liberal.”
During Thursday’s oral arguments, the judges seized on Brumby’s pretrial testimony.
They cited a 1989 U.S. Supreme Court decision that found it is not just illegal to discriminate against employees because of their sex, but that it is also illegal to discriminate against those who don’t conform to the stereotypes associated with their biological sex.
“It looks to me you got a big problem based on what the U.S. Supreme Court said,” Pryor told the state’s lawyer. “We have direct evidence of intentional discrimination, it seems to me.”
Glenn had failed to conform to society’s expectations of men, Pryor said. “That’s what this case is about, right?”
Senior Judge Phyllis Kravitch also noted that no members of the legislative counsel’s staff had complained about Glenn arriving to work on Halloween dressed as a woman.
“No one complained but him,” Barkett added, referring to Brumby.
Standing outside the courthouse after the hearing, Glenn said she was eager for the court to issue its decision.
“I felt it went very well,” Glenn said. “It took a long time to get here, and I’m feeling good.”
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