Discrimination against a Person on the Basis of Gender Non-Conformity Constitutes Sex Discrimination

Published: December 19, 2011

On 6 December 2011, the United States Court of Appeals Eleventh Circuit delivered its judgment in Glenn v Brumby, No. 10-14833, 10-15015. The case concerned the dismissal of a transgender employee by Georgia General Assembly’s Office of Legislative Counsel. Glenn claimed that her dismissal constituted sex discrimination, in violation of the Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution.

The Appeals Court was required to decide whether discriminating against someone on the basis of his or her gender non-conformity amounts to sex-based discrimination. In reaching its decision, the Court noted that the Supreme Court had already established that discrimination on the basis of gender stereotype is sex-based discrimination (Price Waterhouse v Hopkins, 490 U.S. 228 (1989)). Therefore, not just discrimination because of biological sex, but also discrimination based on a failure to act and appear according to expectations defined by gender, is prohibited.

The Appeals Court reasoned that a person is defined as transgender precisely because of the perception that his or her behaviour transgresses gender stereotypes. To discriminate against transsexual individuals because of their transsexual status is, therefore, to discriminate on the basis of gender-based behavioural norms. The Appeals Court found that discrimination against a transgender individual because of her gender non-conformity is sex discrimination, whether it’s described as being on the basis of sex or gender. Because constitutional protections are afforded to everyone, they cannot be denied to a transgender individual. All persons, whether transgender or not, are protected from discrimination on the basis of gender stereotype.

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