When a three-judge panel of the U.S. Court of Appeals for the 6th Circuit, based in Cincinnati, issued a unanimous decision on June 1 in the case of Smith v. City of Salem, Ohio, holding that the Civil Rights Act of 1964 and the Equal Protection Clause of the 14th Amendment both forbid discrimination against transsexuals, it directly contradicted a decision issued by another unanimous panel of judges from the same court just a few weeks earlier.
In both cases, lawsuits had been dismissed by the same trial judge, Peter C. Economus of the Northern District of Ohio.
Drafts of federal appeals decisions are typically circulated among all the active judges within the circuit before their release, so the contradiction between the two rulings raises interesting questions. The Smith ruling is a far-reaching decision that puts the 6th Circuit, generally one of the more conservative appeals courts, out in front of the other circuits on transgender rights.
In the first case, Selena Johnson, who was born a man but was hired as a woman, had not had gender reassignment surgery. According to the brief unpublished decision, her employer received complaints about her using both the men’s room and the women’s room and required that she provide a note from her doctor clarifying her gender. Ultimately, the employer relied on Johnson’s driver’s license and ordered that she use only the men’s room. In response, Johnson refused to return to work and was discharged for absenteeism.
Johnson sued under the Civil Rights Act’s Title VII and the Americans With Disabilities Act (ADA). Economus dismissed the case, finding that Title VII does not forbid discrimination against transsexuals and that the ADA specifically states that “transsexualism” is not covered as a disability. Johnson argued on appeal that the Supreme Court’s 1989 decision in Price Waterhouse v. Hopkins held that sexual stereotyping is a form of sex discrimination prohibited by Title VII. Economus rejected that argument, and without any substantive discussion, the 6th Circuit said, “we are not persuaded that the district court erred in dismissing the complaint.”
Jimmie Smith’s case was different. Smith, also born male, had a successful employment history with the Salem Fire Department, rising to the rank of lieutenant. Smith was diagnosed with gender dysphoria and began to feminize her dress and appearance. When co-workers began commenting that Smith was not “masculine enough,” she notified her immediate supervisor about the diagnosis and the likelihood that she would get a sex-change operation. Smith asked that the information be kept confidential, but her supervisor immediately informed upper management and top city officials quickly became involved.
According to 6th Circuit by Judge R. Guy Cole, Jr., the fire chief and the city’s top lawyer convened a meeting with the mayor and other top officials for the specific purpose of figuring out how to get rid of Smith. The meeting settled on a strategy to provoke Smith into resigning by requiring a battery of psychological exams. The city safety director offered no dissent at the meting, but called Smith afterward to warn her of a “witch hunt.” Smith filed a discrimination complaint with the Equal Employment Opportunity Commission and a lawyer she retained phoned the mayor to warn of legal consequences. Four days later, the first chief suspended Smith based on “an alleged infraction of a City or Fire Department policy,” a charge that later found to be without merit.
Smith’s lawsuit claimed sex discrimination, unlawful retaliation, and violations of state law, including invasion of privacy. Economus granted the city’s motion to dismiss the case.
Cole found that Economus erred in focusing on Smith’s characterization as a “transsexual” rather than on the reason why Smith was suffering adverse treatment in the workplace. Title VII does not create “protected classes” of individuals, but rather prohibits discrimination on “prohibited grounds,” such as the sex of an individual.
“Sex stereotyping based on a person’s gender non-conforming behavior is impermissible discrimination, irrespective of the cause of that behavior,” wrote Cole. “By definition, transsexuals are individuals who fail to conform to stereotypes about how those assigned to a particular sex at birth should act, dress, and self-identify.”
Cole found it no stretch at all to revive Smith’s constitutional claim as well, noting that claims of intentional sex discrimination by public employees fall under 14th Amendment equal protection requirements.
The 6th Circuit did not rule on the merits of Smith’s discrimination claims, but the city has not seriously challenged Smith’s allegation that city officials met with the specific purpose of seeking her removal from employment solely because she is transsexual, so this decision is likely to lead to a prompt settlement offer from the city if not overturned by the full 6th Circuit or the Supreme Court.
Quite a few federal appeals courts have accepted the argument that gender non-conforming people may find protection under Title VII, but this is the first appellate ruling directly stating that a transsexual’s sex discrimination claim may be pursued under that statute. If upheld against further appeals, this ruling could make it unnecessary for transgender rights activists to have “gender identity” added to the pending federal gay Employment Nondiscrimination Act, since transgendered people would already have more protection under Title VII.
