On December 6, 2011, the US Court of Appeals for the Eleventh Circuit issued an opinion in Glenn v. Brumby, holding that discrimination against a transgender individual because of her gender non-conformity is sex discrimination, whether it is on the basis of sex or gender under the Equal Protection Clause.

Vandiver Elizabeth Glenn (Plaintiff) was born a biological male, but felt she was a woman. Diagnosed with Gender Identity Disorder (GID), she began the process to transition from male to female in 2005. In October 2005, then presenting as a man, Plaintiff, then known as Glenn Morrison, was hired by the Georgia General Assembly's Office of Legislative Counsel (OLC). Plaintiff informed the employer in 2007 that she was proceeding with gender transformation and would begin coming to work as a woman. Claiming that her gender transformation was "inappropriate and disruptive," Sewell Brumby, the head of the OLC, terminated her.

Plaintiff brought an action in the US District Court for the Northern District of Georgia against Brumby, alleging discrimination because of her sex and medical condition under the Equal Protection Clause. The district court granted Plaintiff's motion for summary judgment on her sex discrimination claim and granted summary judgment to Brumby on her medical discrimination claim. Both parties appealed to the Eleventh Circuit.

The Eleventh Circuit affirmed the district court's grant of summary judgment to Plaintiff for sex discrimination.

The court considered whether Plaintiff's termination violated the Equal Protection Clause. Under the Clause, states may not discriminate based on sex unless the discrimination is substantially related to a sufficiently important government interest. The court reasoned that because discrimination on the basis of gender stereotype is sex-based discrimination, discrimination against a transgender individual because of her gender non-conformity is sex discrimination, whether it is on the basis of sex or gender. Therefore, because the employer admitted that he fired Plaintiff because of her gender transition and did not provide a sufficiently important government interest, the court held that Brumby discriminated against Plaintiff because of sex.

The court did not address the issue of medical discrimination, stating that the decision provides Plaintiff with all the relief that she needs.

The Eleventh Circuit follows the First, Sixth and Ninth Circuits in holding that discrimination against a transgender individual because of the individual's gender non-conformity is sex discrimination. Employers in these jurisdictions should review their internal anti-discrimination policies and other materials to include transgender individuals.

For more information on discrimination laws, see Practice Note, Discrimination: Overview and Anti-discrimination Laws: State Q&A Tool.