High court refuses to hear appeal of pro-transgender ruling
November 08 2005 12:00 AM ET
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, a transgender woman who was born Phillip
Barnes. A federal appeals court upheld a jury's finding that
Barnes had been a victim of discrimination that
violated a federal civil rights law. The city was
ordered to pay the officer $320,000 plus another
$550,000 in attorney's fees.
Barnes, a 24-year veteran of the Cincinnati
police force, dressed as a man at work but as 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 sexual or racial discrimination. Sexual
orientation is not covered in the law, but justices
were asked to deal with a related issue: sex
stereotyping of transsexual workers.
The case would have been a follow-up to a 1989
Supreme Court decision that 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 of the number of
transgender workers in the United States because of
their fears of going public, said Lambda 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.
The sixth U.S.
circuit court of appeals in Cincinnati said that Barnes
had been subjected to an unusual daily evaluation by
other sergeants and required to wear a microphone at
all times. (AP)