[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED ________________________ U.S. COURT OF APPEALS ELEVENTH CIRCUIT DECEMBER 6, 2011 No. 10-14833 ; 10-15015 JOHN LEY ________________________ CLERK
D.C. Docket No. 1:08-cv-02360-RWS
VANDIVER ELIZABETH GLENN, f.k.a. Glenn Morrison,
llllllllllllllllllllllllllllllllllllllllPlaintiff - Appellee,
versus
SEWELL R. BRUMBY,
llllllllllllllllllllllllllllllllllllllllDefendant - Appellant. ________________________
Appeals from the United States District Court for the Northern District of Georgia ________________________ (December 6, 2011)
Before BARKETT, PRYOR and KRAVITCH, Circuit Judges.
BARKETT, Circuit Judge:
Sewell R. Brumby appeals from an adverse summary judgment in favor of Vandiver Elizabeth Glenn on her complaint seeking declaratory and injunctive
relief pursuant to 42 U.S.C. § 1983 for alleged violations of her rights under the
Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution.
Glenn claimed that Brumby fired her from her job as an editor in the Georgia
General Assembly’s Office of Legislative Counsel (“OLC”) because of sex
discrimination, thus violating the Equal Protection Clause. The district court
granted summary judgment in Glenn’s favor on this claim.
Glenn also claimed that her constitutional rights were violated because
Brumby terminated her employment due to her medical condition, known as
Gender Identity Disorder (“GID”). The district court ruled against Glenn on this
claim, granting summary judgment to Brumby. Brumby appeals the district
court’s sex-discrimination ruling, and Glenn cross-appeals the ruling on her
medical condition claim.
Vandiver Elizabeth Glenn was born a biological male. Since puberty, Glenn
has felt that she is a woman, and in 2005, she was diagnosed with GID, a
diagnosis listed in the American Psychiatric Association’s Diagnostic and
Statistical Manual of Mental Disorders.1
1 Am. Psychiatric Assoc., Diagnostic and Statistical Manual of Mental Disorders 576 (4th ed. 2000).
2 Starting in 2005, Glenn began to take steps to transition from male to female
under the supervision of health care providers. This process included living as a
woman outside of the workplace, which is a prerequisite to sex reassignment
surgery. In October 2005, then known as Glenn Morrison and presenting as a
man, Glenn was hired as an editor by the Georgia General Assembly’s OLC.
Sewell Brumby is the head of the OLC and is responsible for OLC personnel
decisions, including the decision to fire Glenn.
In 2006, Glenn informed her direct supervisor, Beth Yinger, that she was
a transsexual and was in the process of becoming a woman. On Halloween in
2006, when OLC employees were permitted to come to work wearing costumes,
Glenn came to work presenting as a woman. When Brumby saw her, he told her
that her appearance was not appropriate and asked her to leave the office. Brumby
deemed her appearance inappropriate “[b]ecause he was a man dressed as a
woman and made up as a woman.” Brumby stated that “it’s unsettling to think of
someone dressed in women’s clothing with male sexual organs inside that
clothing,” and that a male in women’s clothing is “unnatural.” Following this
incident, Brumby met with Yinger to discuss Glenn’s appearance on Halloween of
2006 and was informed by Yinger that Glenn intended to undergo a gender
transition.
3 In the fall of 2007, Glenn informed Yinger that she was ready to proceed
with gender transition and would begin coming to work as a woman and was also
changing her legal name. Yinger notified Brumby, who subsequently terminated
Glenn because “Glenn’s intended gender transition was inappropriate, that it
would be disruptive, that some people would view it as a moral issue, and that it
would make Glenn’s coworkers uncomfortable.”
Glenn sued, alleging two claims of discrimination under the Equal
Protection Clause. First, Glenn alleged that Brumby “discriminat[ed] against her
because of her sex, including her female gender identity and her failure to conform
to the sex stereotypes associated with the sex Defendant[] perceived her to be.”
Second, Glenn alleged that Brumby “discriminat[ed] against her because of her
medical condition, GID[,]” because “[r]eceiving necessary treatment for a medical
condition is an integral component of living with such a condition, and blocking
that treatment is a form of discrimination based on the underlying medical
condition.”
Glenn and Brumby filed cross-motions for summary judgment. The District
Court granted summary judgment to Glenn on her sex discrimination claim, and
granted summary judgment to Brumby on Glenn’s medical discrimination claim.
4 Both sides timely appealed to this Court. We first address Glenn’s sex
discrimination claim.
I. Equal Protection and Sex Stereotyping
In any § 1983 action, a court must determine “whether the plaintiff has been
deprived of a right ‘secured by the Constitution and laws’” of the United States.2
Baker v. McCollan, 443 U.S. 137, 140 (1979) (quoting 42 U.S.C. § 1983). Here,
the question is whether Glenn’s termination violated the Equal Protection Clause
of the Fourteenth Amendment.3
The Equal Protection Clause requires the State to treat all persons similarly
situated alike or, conversely, to avoid all classifications that are “arbitrary or
irrational” and those that reflect “a bare . . . desire to harm a politically unpopular
group.” City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 446-47
(1985) (internal quotation marks omitted). States are presumed to act lawfully,
2 42 U.S.C. § 1983 provides:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . .
42 U.S.C. § 1983 (2006). 3 “No State shall . . . deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1.
5 and therefore state action is generally upheld if it is rationally related to a
legitimate governmental purpose. Id. at 440. However, more than a rational basis
is required in certain circumstances. In describing generally the contours of the
Equal Protection Clause, the Supreme Court noted its application to this issue,
referencing both gender and sex, using the terms interchangeably:
Legislative classifications based on gender also call for a heightened standard of review. That factor generally provides no sensible ground for differential treatment. [W]hat differentiates sex from such nonsuspect statuses as intelligence or physical disability . . . is that the sex characteristic frequently bears no relation to ability to perform or contribute to society. Rather than resting on meaningful considerations, statutes distributing benefits and burdens between the sexes in different ways very likely reflect outmoded notions of the relative capabilities of men and women. A gender classification fails unless it is substantially related to a sufficiently important governmental interest.
Id. at 440-41 (internal quotation marks and citations omitted, brackets in original).
In United States v. Virginia, the Supreme Court reaffirmed its prior holdings that
sex-based discrimination is subject to intermediate scrutiny4 under the Equal
Protection Clause. 518 U.S. 515, 555 (1996) (internal quotation marks omitted).
4 The Court has established two standards of review of legislative classifications under the Equal Protection Clause – rational basis scrutiny and heightened scrutiny. See Clark v. Jeter, 486 U.S. 456, 461 (1988). Rational basis scrutiny sets the minimum requirement that all classifications must be “rationally related to a legitimate governmental purpose.” Id. Heightened scrutiny is comprised of intermediate scrutiny and strict scrutiny. Id. Intermediate scrutiny applies to classifications based on sex or illegitimacy and requires that government action be “substantially related to an important governmental objective.” Id. Strict scrutiny is the most exacting form of review and it applies to classifications pertaining to race or national origin and to those affecting certain fundamental rights. Id.
6 This standard requires the government to show that its “gender classification . . . is
substantially related to a sufficiently important government interest.” Cleburne,
473 U.S. at 441. Moreover, this test requires a “genuine” justification, not one
that is “hypothesized or invented post hoc in response to litigation.” Virginia, 518
U.S. at 533. In Virginia, the state’s policy of excluding women from the Virginia
Military Institute failed this test because the state could not rely on generalizations
about different aptitudes of males and females to support the exclusion of women.
Id. at 542. “State actors controlling gates to opportunity, we have instructed, may
not exclude qualified individuals based on ‘fixed notions concerning the roles and
abilities of males and females.’” Id. at 541 (quoting Mississippi Univ. for Women
v. Hogan, 458 U.S. 718, 725 (1982)).
The question here is whether discriminating against someone on the basis of
his or her gender non-conformity constitutes sex-based discrimination under the
Equal Protection Clause. For the reasons discussed below, we hold that it does.
In Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), the Supreme Court
held that discrimination on the basis of gender stereotype is sex-based
discrimination. In that case, the Court considered allegations that a senior
manager at Price Waterhouse was denied partnership in the firm because she was
considered “macho,” and “overcompensated for being a woman.” Id. at 235. Six
7 members of the Supreme Court agreed that such comments were indicative of
gender discrimination and held that Title VII barred not just discrimination
because of biological sex, but also gender stereotyping–failing to act and appear
according to expectations defined by gender. Id. at 250-51 (plurality opinion); id.
at 258-61 (White, J., concurring); id. at 272-73 (O'Connor, J., concurring). The
Court noted that “[a]s 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 stereotypes associated with their group . . . .” Id. at 251.
A person is defined as transgender precisely because of the perception that
his or her behavior transgresses gender stereotypes. “[T]he very acts that define
transgender people as transgender are those that contradict stereotypes of gender-
appropriate appearance and behavior.” Ilona M. Turner, Sex Stereotyping Per Se:
Transgender Employees and Title VII, 95 Cal. L. Rev. 561, 563 (2007); see also
Taylor Flinn, Transforming the Debate: Why We Need to Include Transgender
Rights in the Struggles for Sex and Sexual Orientation Equality, 101 Colum. L.
Rev. 392, 392 (2001) (defining transgender persons as those whose “appearance,
behavior, or other personal characteristics differ from traditional gender norms”).
There is thus a congruence between discriminating against transgender and
8 transsexual individuals and discrimination on the basis of gender-based behavioral
norms.
Accordingly, 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. Indeed, several circuits have so held. For example, in
Schwenk v. Hartford, the Ninth Circuit concluded that a male-to-female
transgender plaintiff who was singled out for harassment because he presented and
defined himself as a woman had stated an actionable claim for sex discrimination
under the Gender Motivated Violence Act because “the perpetrator’s actions stem
from the fact that he believed that the victim was a man who ‘failed to act like
one.’” 204 F.3d 1187, 1198-1203 (9th Cir. 2000). The First Circuit echoed this
reasoning in Rosa v. Park West Bank & Trust Co., where it held that a transgender
plaintiff stated a claim by alleging that he “did not receive [a] loan application
because he was a man, whereas a similarly situated woman would have received
[a] loan application. That is, the Bank . . .treat[s] . . . a woman who dresses like a
man differently than a man who dresses like a woman.” 214 F.3d 213, 215-16 (1st
Cir. 2000). These instances of discrimination against plaintiffs because they fail
to act according to socially prescribed gender roles constitute discrimination under
Title VII according to the rationale of Price Waterhouse.
9 The Sixth Circuit likewise recognized that discrimination against a
transgender individual because of his or her gender non-conformity is gender
stereotyping prohibited by Title VII and the Equal Protection Clause. See Smith v.
City of Salem, 378 F.3d 566 (6th Cir. 2004). The court concluded that a
transsexual firefighter could not be suspended because of “his transsexualism and
its manifestations,” id. at 569, because to do so was discrimination against him
“based on his failure to conform to sex stereotypes by expressing less masculine,
and more feminine mannerisms and appearance.” Id. at 572; see Barnes v. City of
Cincinnati, 401 F.3d 729 (6th Cir. 2005) (holding that transsexual plaintiff stated a
claim for sex discrimination“by alleging discrimination . . . for his failure to
conform to sex stereotypes”).
District courts have recognized as well that sex discrimination includes
discrimination against transgender persons because of their failure to comply with
stereotypical gender norms. See Lopez v. River Oaks Imaging & Diagnostic
Group, Inc., 542 F. Supp. 2d 653, 659-661 (S.D. Tex. 2008) (“Title VII and Price
Waterhouse . . . do not make any distinction between a transgendered litigant who
fails to conform to traditional gender stereotypes and [a] ‘macho’ female who . . .
is perceived by others to be in non-conformity with traditional gender
stereotypes.”); Schroer v. Billington, 424 F. Supp. 2d 203, 211 (D.D.C. 2006)
(“[I]t may be time to revisit [the] conclusion . . . that discrimination against
10 transsexuals because they are transsexuals is literally discrimination because of
sex.”) (internal quotation marks and ellipsis omitted); Mitchell v. Axcan
Scandipharm, 2006 U.S. Dist. LEXIS 6521 (W.D. Pa. Feb. 21, 2006) (holding that
a transgender plaintiff may state a claim for sex discrimination by “showing that
his failure to conform to sex stereotypes of how a man should look and behave
was the catalyst behind defendant's actions”); Kastl v. Maricopa Cnty. Comm.
College Dist., 2004 U.S. Dist. LEXIS 29825, at *8-9 (D. Ariz. June 3, 2004), aff’d
325 Fed. Appx. 492 (9th Cir. 2009) (“[N]either a woman with male genitalia nor a
man with stereotypically female anatomy, such as breasts, may be deprived of a
benefit or privilege of employment by reason of that nonconforming trait.”);
Tronetti v. Healthnet Lakeshore Hosp., 2003 U.S. Dist. LEXIS 23757 (W.D.N.Y.
Sept. 26, 2003) (holding transsexual plaintiff may state a claim under Title VII
“based on the alleged discrimination for failing to ‘act like a man’”).5
5 Prior to the Supreme Court’s decision in Price Waterhouse, several courts concluded that Title VII afforded no protection to transgender victims of sex discrimination. See, e.g., Ulane v. E. Airlines, Inc., 742 F.2d 1081, 1087 (7th Cir. 1984) (concluding that discrimination against plaintiff was “not because she is female, but because she is transsexual”); Sommers v. Budget Mktg., Inc., 667 F.2d 748, 750 (8th Cir. 1982) (rejecting transgender plaintiff’s claim as falling outside “the traditional definition” of sex under Title VII); Holloway v. Arthur Anderson & Co., 566 F.2d 659, 663 (9th Cir. 1977) (“Congress has not shown any intent other than to restrict the term ‘sex’ to its traditional meaning.”); Voyles v. Ralph K. Davies Med. Ctr., 403 F. Supp. 456, 457 (N.D. Cal. 1975) (holding that Title VII was not intended to “embrace ‘transsexual’ discrimination”). However, since the decision in Price Waterhouse, federal courts have recognized with near-total uniformity that “the approach in Holloway, Sommers, and Ulane . . . has been eviscerated” by Price Waterhouse’s holding that “Title VII’s reference to ‘sex’ encompasses both the biological differences between men and women, and gender discrimination, that is, discrimination based on a failure to conform to stereotypical gender
11 All persons, whether transgender or not, are protected from discrimination
on the basis of gender stereotype. For example, courts have held that plaintiffs
cannot be discriminated against for wearing jewelry that was considered too
effeminate,6 carrying a serving tray too gracefully,7 or taking too active a role in
norms.” Smith, 378 F.3d at 573; see also Schwenk, 204 F.3d at 1201 (“The initial judicial approach taken in cases such as Holloway has been overruled by the logic and language of Price Waterhouse.”); Rosa, 214 F.3d at 215-16 (affirming that transgender plaintiffs may claim sex discrimination based on their non-conformity with gender stereotype); see generally Demoya R. Gordon, Transgender Legal Advocacy: What do Feminist Legal Theories Have to Offer?, 97 Calif. L. Rev. 1719, 1719 pt. I (2009) (reviewing history of transgender discrimination in Title VII cases). But see Creed v. Family Express Corp., No. 3:06-CV-465, 2009 U.S. Dist. LEXIS 237, at * 21-27 (N.D. In. Jan. 5, 2009) (permitting employer to fire transgender employee based on his failure to conform to dress code and grooming policy); Etsitty v. Utah Trans. Auth., No. 2:04-CV-616, 2005 U.S. Dist. LEXIS 12634, at * 11-14 (D. Utah June 24, 2005), aff’d 502 F.3d 1215 (10th Cir. 2007) (concluding that Price Waterhouse is inapplicable to transsexuals); Oiler v. Winn-Dixie La., Inc., 2002 U.S. Dist. LEXIS 17417, at * 29 (E.D. La. Sept. 16, 2002) (distinguishing Price Waterhouse on the basis that “[t]he plaintiff in that case may not have behaved as the partners thought a woman should have, but she never pretended to be a man . . .”). The pre-Price Waterhouse cases’ reliance on the presumed intent of Title VII’s drafters is also inconsistent with Oncale v. Sundowner Offshore Services, Inc., where the Supreme Court held that original legislative intent must not be given controlling weight in interpreting Title VII. See 523 U.S. 75, 79-80 (1998) (“[S]tatutory prohibitions [such as Title VII] often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.”). 6 In Doe v. City of Belleville, the Seventh Circuit held that a young man who was taunted by co-workers for wearing an earring and who was repeatedly asked whether he was “a boy or a girl” clearly stated a Title VII sexual harassment claim by alleging that “the way in which he projected the sexual aspect of his personality (and by that we mean his gender) did not conform to his coworkers’ view of appropriate masculine behavior.” Doe v. City of Belleville, 119 F.3d 563, 580 (7th Cir. 1997), vacated on other grounds by 523 U.S. 1001 (1998). 7 In Nichols v. Azteca Restaurant Enterprises, the Ninth Circuit held that a waiter who was harassed by his co-workers for carrying a serving tray “like a woman” stated a claim for sexual harassment under Title VII because his antagonists were animated by his gender- nonconforming behavior. 256 F.3d 864, 874 (9th Cir. 2001).
12 child-rearing.8 An individual cannot be punished because of his or her perceived
gender non-conformity. Because these protections are afforded to everyone, they
cannot be denied to a transgender individual. The nature of the discrimination is
the same; it may differ in degree but not in kind, and discrimination on this basis is
a form of sex-based discrimination that is subject to heightened scrutiny under the
Equal Protection Clause. Ever since the Supreme Court began to apply heightened
scrutiny to sex-based classifications, its consistent purpose has been to eliminate
discrimination on the basis of gender stereotypes.
In Frontiero v. Richardson, the Court struck down legislation requiring only
female service members to prove that their spouses depended upon them
financially in order to receive certain benefits for married couples. See 411 U.S.
677, 691 (1973) (plurality opinion). The plurality applied heightened scrutiny to
sex-based classifications by referring to the pervasiveness of gender stereotypes,
see id. at 683-86 (noting a tradition of “‘romantic paternalism’” that “put women[]
not on a pedestal, but in a cage”), and held that gender-based classifications are
8 In Knussman v. Maryland, the Fourth Circuit upheld liability under the Equal Protection Clause against an employer who prohibited an employee, the father of a newborn, from taking statutory leave as a “primary care giver” under the Family Medical Leave Act. 272 F.3d 625, 642-43 (4th Cir. 2001). The employer’s rationale was that a father cannot act as primary caregiver because “God made women to have babies and, unless [the employee] could have a baby, there is no way he could be primary care giver.” Id. at 629-30 (internal quotation marks and brackets omitted). The court held that the employer’s “irrebuttable presumption” that a father cannot act as the primary caregiver was incompatible with precedent prohibiting an individual’s role in parenting to be limited based solely on gender. See id. at 635-37.
13 “inherently suspect,” id. at 688, because they are often animated by “stereotyped
distinctions between the sexes,” id. at 685. Two years later, the Court applied this
heightened level of scrutiny to a Utah statute setting a lower age of majority for
women and concluded that the statute could not be sustained by the stereotypical
assumption that women tend to marry earlier than men. See Stanton v. Stanton,
421 U.S. 7, 14 (1975). The Court again rejected gender stereotypes, holding that
“‘old notions’” about men and women’s behavior provided no support for the
State’s classification. Id. at 14. That same year, the Court confronted a provision
of the Social Security Act that allowed certain benefits to widows while denying
them to widowers. See Weinberger v Wiesenfeld, 420 U.S. 636, 637 (1975). The
Court again used heightened scrutiny to strike at gender stereotype, concluding
that “the Constitution also forbids gender-based differentiation” premised on the
stereotypical assumption that a husband’s income is always more important to the
wife than is the wife’s to the husband. Id. at 645.
In each of these foundational cases, the Court concluded that discriminatory
state action could not stand on the basis of gender stereotypes. See also Craig v.
Boren, 429 U.S. 190, 199 (1976) (explaining that “the weak congruence between
gender and the characteristic or trait that gender purported to represent”
necessitated applying heightened scrutiny); Orr v. Orr, 440 U.S. 268, 282 (1977)
14 (“Legislative classifications which distribute benefits and burdens on the basis of
gender carry the risk of reinforcing stereotypes about the ‘proper place’ of women
. . . .”). The Court’s more recent cases reiterate that the Equal Protection Clause
does not tolerate gender stereotypes. See Mississippi Univ. for Women v. Hogan,
458 U.S. 718, 726 (1982) (explaining that “the purpose” of heightened scrutiny is
to ensure that sex-based classifications rest upon “reasoned analysis rather than . .
. traditional, often inaccurate, assumptions about the proper roles of men and
women”); see also Virginia, 518 U.S. at 533 (“[The government] must not rely on
overbroad generalizations about the different talents, capacities, or preferences of
males and females.”); cf. Nevada Dep’t of Human Res. v. Hibbs, 538 U.S. 721,
735 (2003) (holding that Congress may enact remedial measures under Section
Five of the Fourteenth Amendment to counteract sex-based stereotypes).9
Accordingly, governmental acts based upon gender stereotypes–which presume
that men and women’s appearance and behavior will be determined by their
sex–must be subjected to heightened scrutiny because they embody “the very
9 The Court’s reasoning has indicated that governmental reliance on gender-based stereotypes is dispositive in its equal protection analysis even in cases that uphold the government’s challenged action under heightened scrutiny. In Nguyen v. INS, the Court concluded that an immigration statute burdening unwed fathers and mothers unequally survived intermediate scrutiny because the statute did not rely on gender stereotype. 533 U.S. 53, 68 (2001). The dissent disagreed, concluding that the statute was fatally flawed because it relied on stereotypes about the relative parenting abilities of fathers and mothers. See 533 U.S. 74, 88-91 (O’Connor, J., dissenting). Thus, both majority and dissent viewed the statute’s reliance on gender-based stereotypes as determinative of its validity.
15 stereotype the law condemns.” J.E.B. v. Alabama, 511 U.S. 127, 138 (1994)
(internal quotation marks omitted) (declaring unconstitutional a government
attorney’s use of peremptory juror strikes based on the presumption that potential
jurors’ views would correspond to their sexes).
We conclude that a government agent violates the Equal Protection Clause’s
prohibition of sex-based discrimination when he or she fires a transgender or
transsexual employee because of his or her gender non-conformity.
II. Glenn’s Termination
We now turn to whether Glenn was fired on the basis of gender
stereotyping. The first inquiry is whether Brumby acted on the basis of Glenn’s
gender non-conformity. See Vill. of Arlington Heights v. Metro. Hous. Dev.
Corp., 429 U.S. 252, 266 (1977) (requiring proof of discriminatory intent). If so,
we must then apply heightened scrutiny to decide whether that action was
substantially related to a sufficiently important governmental interest. See
Virginia, 518 U.S. at 533 (stating test for intermediate scrutiny).
A plaintiff can show discriminatory intent through direct or circumstantial
evidence. See Wright v. Southland Corp., 187 F.3d 1287, 1293 (11th Cir. 1999)
(outlining methods of proof). In this case, Brumby testified at his deposition that
he fired Glenn because he considered it “inappropriate” for her to appear at work
16 dressed as a woman and that he found it “unsettling” and “unnatural” that Glenn
would appear wearing women’s clothing. Brumby testified that his decision to
dismiss Glenn was based on his perception of Glenn as “a man dressed as a
woman and made up as a woman,” and Brumby admitted that his decision to fire
Glenn was based on “the sheer fact of the transition.” Brumby’s testimony
provides ample direct evidence to support the district court’s conclusion that
Brumby acted on the basis of Glenn’s gender non-conformity.
If this were a Title VII case, the analysis would end here. See Lewis v.
Smith, 731 F.2d 1535, 1537-38 (11th Cir. 1984) (“If the evidence consists of
direct testimony that the defendant acted with a discriminatory motive, and the
trier of fact accepts this testimony, the ultimate issue of discrimination is
proved.”). However, because Glenn’s claim is based on the Equal Protection
Clause, we must, under heightened scrutiny, consider whether Brumby succeeded
in showing an “exceedingly persuasive justification,” Virginia, 518 U.S. at 546
(internal quotation marks omitted), that is, that there was a “sufficiently important
governmental interest” for his discriminatory conduct, Cleburne, 473 U.S. at 441.
This burden “is demanding and it rests entirely on the State.” Virginia, 518 U.S. at
533. The defendant’s burden cannot be met by relying on a justification that is
"hypothesized or invented post hoc in response to litigation." Id.
17 On appeal, Brumby advances only one putative justification for Glenn’s
firing: his purported concern that other women might object to Glenn’s restroom
use. However, Brumby presented insufficient evidence to show that he was
actually motivated by concern over litigation regarding Glenn’s restroom use. To
support the justification that he now argues, Brumby points to a single statement
in his deposition where he referred to a speculative concern about lawsuits arising
if Glenn used the women’s restroom. The district court recognized that this single
reference, based on speculation, was overwhelmingly contradicted by specific
evidence of Brumby’s intent, and we agree. Indeed, Brumby testified that he
viewed the possibility of a lawsuit by a co-worker if Glenn were retained as
unlikely and the record indicates that the OLC, where Glenn worked, had only
single-occupancy restrooms. Brumby advanced this argument before the district
court only as a conceivable explanation for his decision to fire Glenn under
rational basis review. See Glenn v. Brumby, 724 F. Supp. 2d 1284, 1302 (N.D.
Ga. 2010) (“Defendant based his entire defense on the argument that Plaintiff was
not a member of a protected class and therefore his actions must only survive the
rational relationship test.”). The fact that such a hypothetical justification may
have been sufficient to withstand rational-basis scrutiny, however, is wholly
irrelevant to the heightened scrutiny analysis that is required here.
18 Brumby has advanced no other reason that could qualify as a governmental
purpose, much less an “important” governmental purpose, and even less than that,
a “sufficiently important governmental purpose” that was achieved by firing Glenn
because of her gender non-conformity. Cleburne, 473 U.S. at 441.
We therefore AFFIRM the judgment of the district court granting summary
judgment in favor of Glenn on her sex-discrimination claim. In light of this
decision, which provides Glenn with all the relief that she seeks, there is no need
to address Glenn’s cross-appeal.
AFFIRMED