Supreme Court and Different types of men and women

One side says the case is about sex discrimination. The other says it's simple stereotyping. Now the Supreme Court is being asked to step in.

In 1999, Philip Barnes was a Cincinnati police officer training for a promotion to sergeant. Barnes was also intent on changing gender and spent his off hours living as a woman. Barnes, who had worked in the department since 1981, ranked 18th out of the 105 officers who took the sergeant's exam. But the police department, citing a litany of professional errors and shortcomings, refused to promote Barnes.

"The law tries to keep women and men from being treated differently," says Ganulin. "But different kinds of men and women is the gray area, and the Court needs to step in."

According to Legal Times, the Supreme Court of the US (SCOTUS) may take up the case of Barnes v. Cincinnati (text of article below the fold).  You can't control what SCOTUS will hear and what it won't.  All other things being equal, I would rather have had them hear either the Littleton case or the Gardiner case, or even Ulane (all of which they refused).  And, of course, they may choose to not hear this one. 

The issue is an interesting one from serveral perspectives.  First, because of Ulane, the law of the land since 1984 has been that it is legal to discriminate on the grounds of transsexuality without running afoul of Title VII's prohibition against discrimination on the grounds of sex.  According to the Ulane court:

The phrase in Title VII prohibiting discrimination based on sex, in its plain meaning, implies that it is unlawful to discriminate against women because they are women and against men because they are men. The words of Title VII do not outlaw discrimination against a person who has a sexual identity disorder...

Since Ulane was not discriminated against as a female, and since Title VII is not so expansive in scope as to prohibit discrimination against transsexuals, we reverse the order of the trial court and remand for entry of judgment in favor of Eastern ...

Then came Price Waterhouse.  In that case, a woman was denied promotion because she was not feminine enough for her supervisors and the partners in the accounting firm. There, SCOTUS did hear the case and ruled that the discrimination was unlawful because of sex stereotyping:

As for the legal relevance of sex stereotyping, we are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group, for "'[i]n forbidding employers to discriminate against individuals because of their sex, Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.'"

Price Waterhouse v. Hopkins, 490 U.S. 228, 251 (U.S. 1989).

Following Price, people began to speculate that coverage for transsexuals may then exist under Title VII, using such an argument.  Smith was the first case that was really successful in that argument (reported upon here, and here). Barnes was decided by the same 6th Circuit.  Part of me really hopes SCOTUS declines to hear it; I like the law as it is now established and I fear this conservative court will take away this protection from us. On the other hand, of course, they could do the right thing.

[UPDATE] 11/7: The Washington Post reports that the supremes have decided to not hear the case.  Text of article below the fold.

The Supreme Court refused Monday to consider shielding employers from discrimination lawsuits by transsexuals, dodging a workplace rights fight.

The court's refusal to intervene leaves in place a victory for Cincinnati Officer Philecia Barnes, who was born Phillip Barnes.

---
Supreme Court May Take Up Transsexual Case

Nathan Carlile
Legal Times
11-03-2005


One side says the case is about sex discrimination. The other says it's simple stereotyping. Now the Supreme Court is being asked to step in.

In 1999, Philip Barnes was a Cincinnati police officer training for a promotion to sergeant. Barnes was also intent on changing gender and spent his off hours living as a woman. Barnes, who had worked in the department since 1981, ranked 18th out of the 105 officers who took the sergeant's exam. But the police department, citing a litany of professional errors and shortcomings, refused to promote Barnes.

Barnes, now known as Philecia Barnes, filed suit in 2003 in the U.S. District Court for the Southern District of Ohio, claiming sexual discrimination under Title VII of the Civil Rights Act. A jury ultimately agreed with Barnes, awarding $320,000 in damages. The verdict was later upheld by the 6th U.S. Circuit Court of Appeals. On appeal, the city argued, to no avail, that the sexual discrimination Barnes claims is instead sexual stereotyping, based on his act of switching sexes, which does not enjoy special protection under the law and would leave Barnes without a cause of action.

The Supreme Court will consider Barnes v. City of Cincinnati during its private conference Friday. It is among several cases the Court will review to determine if they should be added to the Court's docket for argument next year.

In its brief the city cites Price Waterhouse v. Hopkins, a landmark sex discrimination case decided in 1989 with a 6-3 vote. In a dissenting opinion in that case, Justices Anthony Kennedy, Antonin Scalia, and then-Chief Justice William Rehnquist wrote that "Title VII creates no independent cause of action for sex stereotyping." The dissent went further, emphasizing, "The plaintiff must show that the employer relied on her gender in making its decision."

The city sees this as an opening. It has asked the Court to view Barnes as a transsexual and in the same light as homosexuality, which does not have protection under Title VII. The brief also cites confusion between the circuits and says the 2nd and 7th circuits have recognized that Title VII does not protect transsexuals from discrimination.

In the respondent brief, Barnes says the circuits are in agreement because his claim was not based on his transsexuality but on how the department viewed his gender. Barnes claims the Court established clear precedent with Price Waterhouse, saying sex stereotyping is a form of discrimination and the law was properly applied in this case.

"Just as the woman in Price Waterhouse was denied a partnership because she was not sufficiently feminine for her employer, Philip Barnes, a male at the time of his probation, was denied his promotion because he was not sufficiently masculine enough for his supervisors," the brief states.

What is most important, says Richard Ganulin, Cincinnati's assistant city solicitor, is whether the Court desires to redefine the difference between sex discrimination and sexual stereotyping.

"The law tries to keep women and men from being treated differently," says Ganulin. "But different kinds of men and women is the gray area, and the Court needs to step in."

UPDATE:

Court Passes on Transsexual Discrimination

By GINA HOLLAND

The Associated Press
Monday, November 7, 2005; 10:49 AM

WASHINGTON -- The Supreme Court refused Monday to consider shielding employers from discrimination lawsuits by transsexuals, dodging a workplace rights fight.

The court's refusal to intervene leaves in place a victory for Cincinnati Officer Philecia Barnes, who was born Phillip Barnes.

A federal appeals court upheld a jury's finding that Barnes was a victim of discrimination, under a federal civil rights law. The city had been ordered to pay the officer $320,000, and pay another $550,000 in attorney fees.

Barnes, a 24-year veteran of the Cincinnati police force, dressed as a man at work but a woman during off-hours in 1999 when the officer was demoted. Barnes sometimes wore makeup to work and had manicured nails.

Richard Ganulin, one of the city attorneys, told justices that employers should be protected from discrimination lawsuits based on "transsexual and homosexual characteristics." The city maintains the demotion was for professional reasons.

Had the court agreed to hear the case, arguments would have been scheduled in the spring, in time for two justices named by President Bush to weigh in. At issue was the scope of the 1964 Civil Rights Acts, which protects people from sex or race discrimination.

Sexual orientation is not covered in the law, but justices were asked to deal with a related issue: sex stereotyping of transsexual workers.

A transsexual is a person who has undergone a sex change operation or whose sexual identification is with the opposite sex.

The case would have been a follow-up to a 1989 Supreme Court decision which made it more difficult for employers to win lawsuits accusing them of sexual stereotyping and other bias. That case involved a woman who argued she was denied promotion because her supervisors thought she did not act feminine enough.

Justice Sandra Day O'Connor played a key role in that case. She sided with the woman and wrote a separate opinion that gave guidelines for lower courts to follow. Victims, she wrote, must show that "an illegitimate criterion (such as sexual stereotyping) was a substantial factor" in the employer's personnel decision.

Bush has named appeals court Judge Samuel Alito to replace the retiring O'Connor, and some civil rights groups oppose the nomination. Another Bush nominee, Chief Justice John Roberts, was confirmed in time for the start of the Supreme Court's term last month. Roberts replaced Rehnquist, who had voted against the female worker in the 1989 case.

There are no good estimates about the number of transgender workers in the United States because of their fears of going public, said Lamda Legal attorney Cole Thaler.

"Trans employees are particularly vulnerable to harassment and discrimination because they deviate from employers' ideas of what men and women are supposed to look and act like," said Thaler, a lawyer with the gay-rights group that is not involved in the Barnes case.

The 6th U.S. Circuit Court of Appeals in Cincinnati said that Barnes was subjected to an unusual daily evaluation by other sergeants and required to wear a microphone at all times

The case is Cincinnati v. Barnes, 5-292