S C U

IN THE
SUPREME COURT OF THE UNITED STATES
SPRING TERM, 2016
DOCKET NO. 16-24
________________
BEETZ, INC.,
Petitioner,
v.
ERIKA RITE,
Respondent.
_____________________
ON WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE THIRTEENTH CIRCUIT
BRIEF FOR THE RESPONDENT
Team 8
Counsel for the Respondent
February 15, 2016
____________________________
QUESTIONS PRESENTED
I.
Under the Family Medical Leave Act (FMLA), is a broad interpretation the
appropriate standard to determine whether gender dysphoria constitutes a serious
health condition when an employee requires continuous treatment that
necessitates gender-reassignment surgery?
II.
Under the Title VII of the Civil Rights Act, is a broad interpretation the
appropriate standard to determine whether sex discrimination includes gender
identity when an exemplary employee is denied a promotion and hidden from the
public because of her appearance?
ii
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TABLE OF CONTENTS
TABLE OF CONTENTS............................................................................................................... iii
TABLE OF AUTHORITIES .......................................................................................................... v
QUESTIONS PRESENTED........................................................................................................... ii
OPINIONS BELOW....................................................................................................................... 1
STATEMENT OF THE CASE....................................................................................................... 1
ARGUMENT .................................................................................................................................. 6
I.
II.
MS. RITE HAS A LAWFUL SEX DISCRIMINATION CLAIM BECAUSE BEETZ
CANNOT DENY A PROMOTION OR TRANSFER EMPLOYEES BASED ON
THEIR GENDER IDENTITY OR THEIR NONCONFORMANCE TO SEX
STEREOTYPES ............................................................................................................... 6
A.
Ms. Rite is protected against sex discrimination as a transgender woman or a
biological male who did not conform to masculine stereotypes because sex
discrimination should be construed broadly ...................................................... 8
B.
Ms. Rite impermissibly suffered adverse employment actions when she was
denied a promotion and transferred to a substantially different job based on
her gender ............................................................................................................ 13
THIS COURT SHOULD QUALIFY MS. RITE’S GENDER DYSPHORIA AS A
SERIOUS CONDITION THAT REQUIRES GENDER REASSIGNMENT
SURGERY AND ADOPT THE COMBINATION STANDARD FOR INCAPACITY
BECAUSE IT COMPORTS WITH MEDICAL SCIENCE AND PROGRESSES
THE FMLA’S PURPOSE .............................................................................................. 18
A.
Gender reassignment surgery is a medically necessary treatment for gender
dysphoria ............................................................................................................. 20
1. The Incapacity Requirement ......................................................................... 20
a. Support in the Federal Courts ................................................................. 21
b. Support From the Medical Community .................................................. 22
c. Government Agency Support ................................................................... 23
2. The Continuing Treatment Requirement ...................................................... 24
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B.
The Combination Standard for incapacity best balances the FMLA’s
purpose of accommodating the employer’s need to prevent abuse with the
employee’s need for flexible job-protection and embraces a DOL process
already in place ................................................................................................... 26
1. The Combination Standard is the Best Standard ......................................... 26
2. Beetz ignored the Department of Labor Regulations ................................... 27
CONCLUSION ............................................................................................................................. 29
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TABLE OF AUTHORITIES
Cases
Barnes v. City of Cincinnati, 401 F.3d 729 (6th Cir. 2005)................................................. 9-10, 12
Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) ............................................................................5
Burlington Northern & Santa Fe Ry. v. White, 548 U.S. 53 (2006) ..............................................14
Cnty. of Wash. v. Gunther, 452 U.S. 161 (1981) .....................................................................11, 15
Culpepperv.BlueCrossBlueShieldofTenn.Inc.,2009U.S.App.
LEXIS8291,at••14-15(Apr.20,2009) ...................................................................19, 26
Dalton v. Manor Care of West Des Moines IA., LLC, 782 F.3d 955 (8th Cir. 2015) .............. 24-25
Davidson v. Aetna Life & Casualty Ins. Co., 420 N.Y.S.2d 450 (1979) ......................................24
De’Lonta v. Johnson, 708 F.3d 520 (4th Cir. 2013) ......................................................................22
Etsitty v. Utah Transit Auth., 502 F.3d 1215 (10th Cir. 2007) ..................................................7, 10
Glenn v. Brumbly, 663 F.3d 1312 (11th Cir. 2011) .........................................................................7
Griggs v. Duke Power, 401 U.S. 424 (1971) .................................................................................12
Haefling v. United Parcel Serv., Inc., 169 F.3d 494 (7th Cir. 1999) .......................................19, 27
Hodgens v. General Dynamics Corp., 144 F.3d 151 (1st Cir.1998)..............................................19
Holloway v. Arthur Anderson & Co., 566 F.2d 659 (9th Cir. 1977) ...............................................7
Kosilek v. Spencer, 774 F.3d 63 (1st Cir. 2014) ...................................................................... 21-22
Lubke v. City of Arlington, 455 F.3d 489 (5th Cir. 2006) ........................................................18, 26
Macy v. Holder, Appeal No. 0120120821, 2012 WL 1435995, (E.E.O.C. Apr. 20, 2012)...........12
Maldonado-Gonzalez v. P.R. Police, 2013 U.S. Dist. Lexis 31800 (D.P.R. 2013) ................14, 17
Marchisheck v. San Mateo Cnty., 199 F.3d 1068 (9th Cir. 1999) ...........................................18, 26
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) ...........................................................14
Miller v. AT&T Corp., 250 F.3d 820 (4th Cir. 2001) ....................................................................20
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NCD 140.3 Transsexual Surgery, Docket No. A-13-87, Decision No. 2576 (2014) ....................23
Oncale v. Sundowner Offshore Servs., 523 U.S. 75 (1998) .......................................................6, 11
Rosa v. Park West Bank & Trust Co., 214 F.3d 213 (1st Cir. 2000) ...............................................7
Schaar v. Lehigh Valley Health Servs, Inc., 598 F.3d 156 (3d Cir. 2010) ........................ 19, 26-27
Schwenk v. Hartford, 204 F.3d 1187 (9th Cir. 2000) ......................................................................7
Sommers v. Budget Mktg., Inc., 667 F.2d 748 (8th Cir. 1982) .................................................... 6-7
Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004) ............................................................7, 9, 12
Smith v. Univ. of Chi. Hosps., No. 02 C 0221, 2003 WL 22757754
(N.D. Ill. Nov. 20, 2003)....................................................................................................28
Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) .............................................................. 6-7, 14
Phillips v. Mathews, 547 F.3d 905 (8th Cir. 2008) ........................................................................24
Rankin v. Seagate Techs., Inc., 246 F.3d 1145 (8th Cir. 2001) ...............................................19, 26
Ulane v. Eastern Airlines, Inc., 742 F.2d 1081 (1984) ....................................................................7
Statutes, Rules, and Regulations
Civil Rights Act of 1964
42 U.S.C. § 2000e-2(a)(1) (2006) ........................................................................................6
Family Medical Leave Act of 1993
29 U.S.C. § 2611 (2006) ....................................................................................................18
29 U.S.C. § 2613 (2006) ....................................................................................................18
29 U.S.C. § 2654 .......................................................................................................... 27-28
29 C.F.R. § 825.100 (2006) ...........................................................................................................18
29 C.F.R. § 825.113 (b) (2006)......................................................................................................24
29 C.F.R. § 825.115 (2006) ..................................................................................................... 18-19
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29 C.F.R. § 825.115 (c) (2006) ..............................................................................18, 20, 24
29 C.F.R. § 825.305 (2006) .....................................................................................................18, 28
29 C.F.R. §§ 825.305-313 (2006) ............................................................................................ 26-27
29 C.F.R. § 825.307 (2006) ..................................................................................................... 27-28
Other Authorities
AM. PSYCH. ASS’N, Diagnostic and Statistical Manual of Mental Disorders, 451
(5th ed. 2013) .....................................................................................................................22
Barry S. Anton, Proceedings of the American Psychological Association for the
Legislative Year 2008, 64 AM. PSYCHOL. 372 (2009) .......................................................22
Brief for Medical and Mental Health Professional: American Medical Association, et al.
as Amici Curiae Supporting Appellees at 1, Fields v. Smith, 653 F.3d 550
(7th Cir. 2011) (Nos. 10-2339,10-2466) ............................................................................22
Coleman, et al., Standards of Care for the Health of Transsexual, Transgender,
and Gender–Nonconforming People, Sixth Version, 18, INT.
J. OF TRANSGENDERISM (2011) ..........................................................................................22
Jack Drescher & Ellen Haller, AM. PSYCHIATRIC ASS’N, Position Statement on Access To
Care for Transgender and Gender Variant Individuals (2012).........................................22
Brittany Ems, Comment, Preparing the Workplace for Transition: A
Solution to Employment Discrimination Based on Gender Identity,
54 ST. LOUIS L.J. 1329 (2010) ......................................................................................... 8-9
Taylor Alyse Pack Ellis, Why the EEOC Got it Right in Macy v. Holder:
The Argument for Transgender Inclusion in Title VII Interpretation, 16 SCHOLAR
375 (2014) ......................................................................................................................6, 11
Phyllis Randolph Frye, The International Bill of Gender Rights vs. the Cider House
Rules: Transgenders Struggle with the Courts over what Clothing They Are
Allowed to Wear on the Job, Which Restroom They Are Allowed to Use on the
Job, Their Right to Marry, and the Very Definition of Their Sex, 7 WM. & MARY
J. OF WOMEN & L. 133 (2000)............................................................................................15
Luk Gijs & Anne Brewaeys, Surgical Treatment of Gender Dysphoria in Adults and
Adolescents: Recent Developments, Effectiveness, and Challenges, 18 ANN. REV.
SEX RES. (2007) .................................................................................................................23
Jaime M. Grant et al., Injustice at Every turn: A Report of the National
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Transgender Discrimination Survey, 3 (2011) ..................................................................15
Nina Zhang, Patient Protection and Affordable Care Act Could Expand Coverage for
Gender Dysphoria, 26 The Health Lawyer, Dec. 2013......................................................23
Katie Koch & Richard Bales, Transgender Employment Discrimination, 17 UCLA
WOMEN’S L.J. 243 (2008) ..............................................................................................9, 11
Robert Kuhn, Title VII Transitions: Recognizing an Identity Inclusive Theory of
Sex-Based Discrimination, 54 SANTA CLARA L. REV. 965 (2014) ...............................7, 12
Heather Knight, San Francisco to Cover Sex Change Surgeries for All Uninsured
Transgender Residents, SFGATE (Nov. 12, 2012) ...........................................................23
Laura S.J. Langer, Our Body Project: From Mourning to Creating the Transgender Body,
15 INT'L J. TRANSGENDERISM 66 (2014) ............................................................................22
Legislative Counsel Committee, CHAPTER 659A—Unlawful Discrimination in
Employment, Public Accommodations and Real Property Transactions;
Administrative and Civil Enforcement (2013) ...................................................................23
Letter No. 12-K: Gender Nondiscrimination Requirements, CALIF. DEP’T. OF MANAGED
HEALTH CARE (Apr. 9, 2013).............................................................................................23
M. Dru Levasseur, Gender Identity Defines Sex: Updating the Law to Reflect Modern
Medical Science is Key to Transgender Rights, 39 VT. L. REV. 943 (2015) ........... 6, 10-11
Laura Anne Taylor, A Win for Transgender Employees: Chevron Deference for the
EEOC’s Decision in Macy v. Holder, 13 UTAH L. REV. 1165 (2013) ................ 8,10-11, 15
Michael J. Vargas, A Journal of Theory and Practice: Article: Title VII and the
Trans-Inclusive Paradigm, 32 LAW & INEQ. 169 (2014) ..................................................12
World Health Organization, Disorders of Adult Personality and Behaviour (F60-F69),
CHAPTER V MENTAL AND BEHAVIOURAL DISORDERS (F00-F99) (2007),
http://apps.who.int/classifications/apps/icd/icd10online2007/index.htm?gf60.htm.
(2007) .................................................................................................................................22
WORLD PROF’L ASS’N FOR TRANSGENDER HEALTH, STANDARDS OF CARE FOR THE
HEALTH OF TRANSSEXUAL, TRANSGENDER, AND GENDER NON-CONFORMING
PEOPLE (Eli Coleman et al. eds., 7th ed. 2012). .................................................................22
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OPINIONS BELOW
The opinion of the Court of Appeals for the Thirteenth Circuit is reported at 575 F.3d 185
(13th Cir. 2015). The opinion of the United States District Court for the Southern District of
Wagner is reported at 585 F. Supp.3d 1 (S.D. Wgr. 2015).
STATEMENT OF THE CASE
This Court should affirm the ruling of the United States Court of Appeals for the
Thirteenth Circuit reversing the District court’s summary judgment ruling against Ms. Rite’s
Title VII and FMLA claims. In regards to the Title VII claim, the Respondent, Ms. Rite, asks this
Court to affirm the Thirteenth Circuit’s decision in reversing the district court’s dismissal of Ms.
Rite’s claim. This Court should adopt a broad interpretation of sex discrimination that includes
both gender identity and sex stereotypes. Furthermore, this Court should affirm the Thirteenth
Circuit’s decision in reversing the district court’s dismissal of Ms. Rite’s FMLA claim. This
Court should likewise adopt a broad interpretation of “serious health condition” that includes
gender dysphoria.
I.
Factual Background
Ms. Rite’s struggles with her sexual identity began long before her employment with
Beetz. (R. at 3.) Ms. Erika Rite was born Eric Rite, and although doctors designated her as a
male at birth, she always identified as a female. (Id.) As a result of the discrepancy between her
outward appearance and her gender identity, Ms. Rite experienced extreme confusion in her
adolescent years. (Id.) After college, Ms. Rite relocated to a more tolerant city but still felt
uncomfortable presenting as a male. (Id.) While at Beetz, Ms. Rite presented a strong male
persona at work but she continued to struggle with the disharmony she felt between her female
gender identity and her male appearance. (R. at 4.)
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Ms. Rite became depressed and sought medical assistance to treat her symptoms; she
consulted a doctor, took medication, endured hormone replacement therapy and underwent
gender reassignment surgery. (R. at 4, 5, 9.) After regular psychotherapy sessions, Ms. Rite’s
doctor diagnosed her with gender dysphoria (“GD”). (R. at 5.) Doctors diagnose GD when a
patient experiences severe anxiety and depression because of an incongruity between his or her
gender identity and the gender assigned at birth. (Id). Despite her medical struggles, Ms. Rite
produced excellent work for Beetz. (R. at 4.) In fact, Beetz “always” considered her “one of
[their] most valued employees.” (R. 31.)
In November of 2013, Mr. Young announced that the company would promote a sales
consultant to the position of Executive Distributor, a position with a much higher salary. (R. at 4,
6.) Aware of Rite’s “exceptional performance,” CEO Andre Young (“Mr. Young”) considered
her for the position. (Id.) Mr. Young also considered O’Shay Jackson, another sales consultant,
for the position. (Id.) Beetz provided three criteria for the promotion. The ideal candidate would
(1) have worked for Beetz for a minimum of seven years, (2) have an exemplary performance
record and (3) have appropriately represented Beetz to the industry and its customers. (Id.)
As to the first qualification, the record lacks sufficient information as to whether Mr.
Jackson possessed the requisite seniority for the position because he joined the company in 2007
and Beetz awarded him the promotion in early 2014. (R. at 6-7.) In contrast, Erika Rite started
with Beetz in 2005, nine years before the announcement. (R. at 4.) While it is possible that Mr.
Jackson reached seven years of seniority before the selection date, Ms. Rite was two years his
senior at the time of the selection. (R. at 6-7.)
Secondly, Beetz sought an employee with an exemplary performance record. (R. at 6.) To
this end, Mr. Young reviewed the Employee Performance Reviews for both of the candidates (R.
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at 6-7.) The Employee Performance Review evaluation measures (1) Job Knowledge, (2) Work
Quality, (3) Attendance/punctuality, (4) Initiative, (5) Communication/ listening skills and (6)
dependability. (R. at 31-32). While Mr. Jackson did not score poorly, Ms. Rite outperformed him
in five of the six measured categories. (Id.) Ms. Rite earned a 4.1 out of 5.0 overall rating while
Jackson scored 3.5. (Id.) Ms. Rite received scores of “good” or “excellent” in five of the six
above categories, though she earned one score of “satisfactory.” (Id.) Mr. Jackson did not earn
any “excellent” ratings and received “satisfactory” ratings in half of the six categories. (R. at 32.)
Finally, Beetz sought a candidate that appropriately represented Beetz to the industry and
its customers. (R. at 6.) The record indicates that Mr. Jackson’s sale performance was not as
strong as Rite’s. (Id.) Although Jackson developed a few brands for Beetz and worked well with
a small group of investors, Ms. Rite generated the highest sales numbers in the company and
earned a prior promotion based on her rapport with investors. (R. at 4.) In fact, investors
preferred to meet with Ms. Rite rather than other sales consultants such as Mr. Jackson, to
discuss their financial involvement with the company. (R. at 4-6.)
While interviewing for the position, Ms. Rite shared her intention to sexually transition
with her boss. (R. at 7.) The following month, despite Ms. Rite’s superior performance review
and seniority, Beetz promoted Mr. Jackson purportedly “based on performance and experience.”
(Id.) A week later, and one month after Ms. Rite shared her transgender identity with the
company, Mr. Young transferred her to a department with “less public visibility” because Beetz
“takes pride in its image.” (R. at 8.) The record implies that Ms. Rite was the first openly
transgender employee at the company. (R. at 8.) In the new position, Ms. Rite enjoyed none of
the contact she formerly had with Beetz investors. (Id.) In fact, Beetz transferred her to a graphic
design position entirely outside her area of experience. (Id.)
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Although she was outraged when Beetz quarantined her in an obscure department, she
produced excellent work. (Id.) Ms. Rite adopted a feminine appearance by wearing feminine
clothing and makeup, growing out her hair, and painting her nails. (R. at 7.)Shortly after the
transfer, Ms. Rite’s doctor determined she was ready for sexual reassignment surgery. (Id.) Ms.
Rite then filed for FMLA on leave November 1, 2014. (Id.) At her employer’s request, Ms. Rite
submitted a medical certification form to Beetz’ Human Resources department (“HR”) on
November 8th, 2014; eighty-four days before the date of her surgery. (Id.) After receiving no
response, Rite contacted HR. (Id.) HR told her that the matter had been referred to management
for a final decision. (Id.) Ms. Rite then contacted Mr. Young about the status of her request. (R.
at 9.) When Mr. Young advised Ms. Rite not to be concerned with the administrative procedures
and told her that she would be contacted shortly without any specific timeline, Ms. Rite chose to
move forward with surgery. (Id.) On January 30, 2015, eighty-four days after Ms. Rite submitted
her medical certification, Ms. Rite underwent gender reassignment surgery. (Id.)
Following her surgery, Ms. Rite’s Doctor prescribed that she stay in bed for one week
and informed her that she would be able to return to daily activities after two weeks. (Id.) Her
doctor also warned of complications and advised her to avoid strenuous activities for three to
four weeks after surgery to ensure proper healing. (Id.) Two days after her surgery, Beetz
suddenly denied Ms. Rite’s FMLA request and informed her that if she were to miss more work,
the company would discipline her. (Id.) Beetz fired Ms. Rite while she recovered from surgery.
(Id.) After the Equal Employment Opportunity Commission (“EEOC”) investigated her claims
and determined that her allegations of sexual discrimination had merit, Ms. Rite filed suit against
Beetz in the Wagner District Court. (Id. at 10.)
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II.
Procedural History
Plaintiff Erika Rite (“Ms. Rite”) commenced this action in the Southern District of
Wagner alleging her former employer Beetz, Inc. (“Beetz”) violated Title VII of the Civil Rights
Act of 1964 (“Title VII”) when it denied her a promotion based on her transgender identity. (R.
at 2.) Rite further alleges that Beetz improperly denied her request for medical leave under the
Family Medical Leave Act 1993 (“FMLA”) when she underwent gender reassignment surgery.
(Id.) Defendant Beetz moved to dismiss both claims. (Id.) Beetz argued that it did not
discriminate against Ms. Rite under the terms of Title VII and that gender dysphoria is not a
serious health condition that qualifies for FMLA leave. (Id.) The district court granted Beetz’
motion to dismiss Ms. Rite’s Title VII claim reasoning that discrimination against a person who
is transgender is not “because of sex,” and consequently is not prohibited by the Act. (R. at 10.)
The district court also dismissed Ms. Rite’s FMLA claim reasoning that because Ms. Rite was
able to work, her gender dysphoria was not sufficiently serious to merit FMLA leave. (R. at 21.)
The Court of Appeals for the Thirteenth Circuit reversed the judgment of the district
court on both issues. (R. at 22.) As to Ms. Rite’s Title VII claim, the Thirteenth Circuit held that
discriminating against a person because of her gender identity constitutes unlawful sex
discrimination. (Id.) In it’s reasoning, the court deferred to the Equal Employment Opportunity
Commission’s (“EEOC”) ruling that Title VII should be construed broadly to prohibit gender
discrimination. (R. at 26.) The Thirteenth Circuit also reinstated Ms. Rite’s FMLA claim and
held that gender dysphoria is a serious health condition. The court reasoned that modern
medicine, health insurance and recent case law counsel that gender reassignment surgery is a
necessary treatment for gender dysphoria. (R. at 22.) The Supreme Court reviews motions to
dismiss for failure to state a claim de novo. Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007).
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ARGUMENT
I.
MS. RITE HAS A LAWFUL SEX DISCRIMINATION CLAIM BECAUSE BEETZ
CANNOT DENY A PROMOTION OR TRANSFER EMPLOYEES BASED ON
THEIR GENDER IDENTITY OR THEIR NONCONFORMANCE TO SEX
STEREOTYPES.
The Thirteenth Circuit properly reversed the district court’s dismissal of Ms. Rite’s Title
VII claim. This Court should affirm the Thirteenth Circuit’s decision because Title VII’s
protections encompass gender identity and nonconformance to sex stereotypes. Title VII of the
Civil Rights Act of 1964 prohibits employers from “discriminat[ing] against any individual . . .
because of such individual’s . . . sex.” Civil Rights Act of 1964 § 7, 42 U.S.C. § 2000e-2(a)(1)
(2006). The amendment to add “sex” to Title VII solicited little congressional debate. Sommers
v. Budget Mktg., Inc., 667 F.2d 748, 750 (8th Cir. 1982). Without legislative guidance, courts
have struggled to understand the meaning and scope of “sex.”1
This Court should define “sex” as a broad term that includes gender identity. Although
this Court has not yet addressed the issue of sex discrimination against a transgendered
employee, this Court expanded the definition of “sex” twice.2 In Price Waterhouse v. Hopkins,
490 U.S. 228, 251 (1989), this Court held that Title VII’s prohibition against sex discrimination
also protects employees who do not conform to gender stereotypes. This Court stated that
“gender must be irrelevant to employment decisions.” Id. at 240. Similarly, this Court’s decision
in Oncale v. Sundowner Offshore Servs., 523 U.S. 75, 79 (1998), expanded the term “sex” to
include same-sex sexual harassment. Recognizing that this Court eroded the distinction between
“sex” and “gender,”3 the First, Sixth, Ninth, and Eleventh Circuits have held that transgendered
plaintiffs can make sex discrimination claims based on their failure to conform to gender
1
Taylor Alyse Pack Ellis, Comment, Why the EEOC Got it Right in Macy v. Holder: The Argument for Transgender
M. Dru Levasseur, Gender Identity Defines Sex: Updating the Law to Reflect Modern Medical Science is Key to
Transgender Rights, 39 VT. L. REV. 943, 974 (2015) (discussing the Supreme Court’s Price Waterhouse and Oncale
decisions).
3
Id.
2
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stereotypes.4 While the Seventh, Eighth, and Ninth Circuits restrict the term “sex” to mean
“biological sex,” as distinguished from gender identity, these cases provide little persuasive
value because they were decided before Price Waterhouse.5 Accordingly, the Tenth Circuit is the
only circuit to narrowly interpret “sex” after the Price Waterhouse decision.6
A broad definition of sex that includes gender identity aligns with medical science,
comports with legal precedent, and best empowers Title VII to protect employees. Furthermore,
it prohibits discriminatory practices against transgendered employees who should not be forced
to choose between medical treatment and a stable income.
Ms. Rite sufficiently pleaded a sex discrimination claim against Beetz based on her
transgender identity and her failure to conform to masculine stereotypes. Ms. Rite enjoyed a long
and distinguished career with Beetz until she presented herself as a woman in accordance with
her medical treatment. (R. at 4-5, 7.) Almost immediately, she lost a promotion to a less qualified
candidate and was exiled to an obscure job with “less public visibility” because of her new
“image.” (R. at 7-8.) The suspicious timing and Mr. Young’s ambiguous comments are sufficient
to create an inference that Ms. Rite’s gender played an impermissible role in the adverse
4
Robert Kuhn, Comment, Title VII Transitions: Recognizing an Identity Inclusive Theory of Sex-Based
Discrimination, 54 SANTA CLARA L. REV. 965, 974-76 (2014) (citing Rosa v. Park West Bank & Trust Co., 214 F.3d
213, 215-16 (1st Cir. 2000) (holding that transgendered plaintiff made a sex discrimination claim under the Equal
Credit Opportunity Act when bank refused to supply a loan application based on his feminine clothing), Smith v.
City of Salem, 378 F.3d 566, 572 (6th Cir. 2004) (holding that transgendered plaintiff sufficiently pleaded a sex
discrimination claim under Title VII when he was suspended for not adhering to employer’s view of masculinity),
Schwenk v. Hartford, 204 F.3d 1187, 1200-03 (9th Cir. 2000) (holding that a transgendered inmate’s failure to
adhere to masculine traits motivated a prison guard’s sexual assault and constituted discrimination on the basis of
sex under the Gender Motivated Crime Act), Glenn v. Brumbly, 663 F.3d 1312, 1319-21 (11th Cir. 2011) (holding
that the Equal Protection Clause’s prohibition against sex discrimination applies to a transgendered plaintiff who
was fired for failure to conform to gender stereotypes)).
5
See id. at 970-74 (citing Ulane v. Eastern Airlines, Inc., 742 F.2d 1081, 1087 (1984) (holding that Title VII’s
prohibition against sex discrimination does not include protection against transsexual identity), Sommers, 667 F.2d
at 748-50 (holding that a transsexual employee is not protected against termination when she was fired for using the
restroom that corresponded with her gender identity), Holloway v. Arthur Andersen & Co., 566 F.2d 659, 663-64
(9th Cir. 1977) (holding that Title VII does not prohibit discrimination based on transsexual identity)).
6
Id. (citing Etsitty v. Utah Transit Auth., 502 F.3d 1215, 1225-27 (10th Cir. 2007) (holding that an employer does
not engage in sex discrimination when it terminates a transgendered employee for failing to use the restroom that
conforms to her gender identity)).
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employment actions she suffered. Accordingly, this Court should affirm the Thirteenth Circuit’s
decision and dismiss Beetz’ motion to dismiss Ms. Rite’s sex discrimination claim.
A.
Ms. Rite is protected against sex discrimination as a transgender woman or a
biological male who did not conform to masculine stereotypes because sex
discrimination should be construed broadly.
This Court should uphold the Thirteenth Circuit’s broad interpretation of sex
discrimination. A broad definition of sex that includes gender identity aligns with medical
science and affords an appropriate deference to legal precedent. Accordingly, Beetz cannot
discriminate against Ms. Rite on the basis of her transgender identity or her nonconformance to
masculine stereotypes. Ms. Rite enjoyed a long career as “one of [Beetz’] most valued
employees” until the moment she expressed herself as a woman. (R. at 4, 7-8, 31.) Mr. Young
also made ambiguous comments about Ms. Rite’s “image” and “public visibility” that suggest
discriminatory animus. (R. at 8.) Therefore, a reasonable jury could infer that Beetz engaged in
sex discrimination when it impermissibly based its employment decisions on Ms. Rite’s gender
identity or her failure to conform to masculine stereotypes.
Title VII protects all employees, including transgender individuals like Ms. Rite. A
transgendered person is someone who, regardless of anatomy, identifies as a gender that is
different from “his or her assigned birth gender.”7 Anatomically and physiologically, transgender
employees are “indistinguishable from nontransgender individuals.” Id. Some transgendered
people require gender reassignment surgery to align their anatomy with their gender identity.8
However, transgender is not synonymous with homosexuality or sexual orientation.9
7
Laura Anne Taylor, Note, A Win for Transgender Employees: Chevron Deference for the EEOC’s Decision in
Macy v. Holder, 13 UTAH L. REV. 1165, 1166 (2013) (defining the term “transgender”).
8
Brittany Ems, Comment, Preparing the Workplace for Transition: A Solution to Employment Discrimination
Based on Gender Identity, 54 ST. LOUIS L.J. 1329, 1332 (2010).
9
Katie Koch & Richard Bales, Transgender Employment Discrimination, 17 UCLA WOMEN’S L.J. 243, 248 (2008).
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Discriminatory animus can be inferred when the employer, like in this case, holds the
employee in exemplary regard until the employee’s outward gender expression changes. For
example, in Smith, the transgendered plaintiff expressed himself as a male while he was
employed with the Salem Fire Department. Smith, 378 F.3d at 568. He enjoyed a positive
employment record for seven years. Id. However, shortly after adopting a feminine appearance
that aligned with his gender identity, city personnel conspired to terminate his employment and
he was suspended. Id. at 568-69. The Sixth Circuit held that the plaintiff properly asserted sex
stereotyping and gender discrimination claims. Id. at 572. The court reasoned that if a woman
cannot be discriminated against for failing to appear feminine, then an employer is not allowed to
discriminate against a man who does appear feminine. Id. at 574. Moreover, the court determined
that a transgendered plaintiff may bring a sex discrimination claim based on his or her
nonconformance to gender stereotypes. Id. at 575.
Additionally, a supervisor’s comments about the employee’s appearance, like the
comments made in this case, can imply discriminatory animus. For example, in Barnes, the
transgendered plaintiff was a Cincinnati police officer who was promoted to sergeant. Barnes v.
City of Cincinnati, 401 F.3d 729, 733 (6th Cir. 2005). The plaintiff adopted a feminine
appearance by arching his eyebrows, manicuring his nails, and occasionally wearing makeup. Id.
at 734. Throughout his probation, the plaintiff received complaints that he lacked “command
presence” because he did not exude a confident image. Id. Additionally, supervisors complained
that he was not taken seriously, he was not “masculine enough,” and he should stop wearing
makeup. Id. at 734-35. Supervisors subjected the plaintiff to an exceptionally stringent, daily
review process during his probation. Id. at 734. He ultimately failed his probation and was the
only sergeant to fail during a seven-year period. Id. at 735. The court upheld the denial of the
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City’s motion for judgment as a matter of law. Id. at 738. In its reasoning, the court determined
that the plaintiff had supplied sufficient evidence that the City discriminated against him based
on his nonconformance to sex stereotypes. Id. at 737.
The work atmosphere in this case is distinguished from cases where the employee’s
outward gender expression creates liability issues for the employer. For example, in Etsitty, the
transgendered plaintiff was a bus operator who was forced to use public restrooms on her route.
Etsitty, 502 F.3d at 1218-19. The employer was concerned that allowing the plaintiff, who had
male genitalia, to use the female restrooms would subject the company to legal liability. Id. at
1219. The plaintiff was placed on administrative leave and terminated after the employer
determined it could not accommodate her restroom needs. Id. However, the employer notified
the plaintiff that she was eligible for rehire upon the completion of her gender reassignment
surgery. Id. The Tenth Circuit upheld the district court’s grant of summary judgment to the
employer. Id. at 1227. In its reasoning, the court determined that the plaintiff did not sufficiently
establish that the employer’s liability concerns were pretext for sex discrimination. Id. at 1226.
This Court should extend broad Title VII protections to transgendered employees because
medical science recognizes gender identity as a component of one’s sex. Restricting sex to “two
binary categories[] is medically, scientifically, and factually inaccurate.” Levasseur, supra note
2, at 946. Researchers identify several components that determine one’s sex including
chromosomal, gonadal, hormonal, and genital sex. Taylor, supra note 7, at 1167. Although
medical staff assign sex based on a child’s external sex organs at birth, a person typically does
not develop a gender identity as male or female until after puberty. See id. Researchers refer to
gender identity as “brain sex” because it is “the primary determinant” of one’s sex. Levasseur,
supra note 2, at 948, 955. During “normal” development, one’s gender identity matches all the
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layers of his or her sex. Taylor, supra note 7, at 1167. However, an incongruence can form
between one’s gender identity and one’s biological sex, which may lead to a diagnosis of gender
dysphoria (GD). Id. Medical treatment for the distress caused by GD focuses on altering the “sex
characteristics to match the core self-identity, rather than alter[ing] the fixed, core gender
identity.” Levasseur, supra note 2, at 954. Accordingly, transgender identity is not “inherently
pathological or negative.” Id. at 952.
This Court should not exclude transgendered employees from Title VII protections
because a narrow definition of sex contradicts the spirit of Title VII and diverges from this
Court’s precedent. Title VII must be construed broadly so that it can fulfill its purpose of
preventing workplace discrimination. See Cnty. of Wash. v. Gunther, 452 U.S. 161, 178 (1981).
The spirit of Title VII compels employers to focus on an employee’s qualifications for the job,
rather than the employee’s physical appearance. Koch & Bales, supra note 9, at 264. Yet,
employment discrimination exacerbates an unemployment rate among transgendered employees
that is “twice that of the national average.” Ellis, supra note 1, at 381. Narrowly defining sex
discrimination inhibits the statute’s ability to protect these marginalized citizens. Koch & Bales,
supra note 9, at 264-65. This Court acknowledged that Title VII’s scope must necessarily “go
beyond the principal evil to cover reasonably comparable evils.” Oncale, 523 U.S. at 79.
Therefore, Title VII’s prohibition against sex discrimination should not be restricted to
nontransgendered employees.
Broadly defining sex discrimination best protects employees because it aligns with
medical knowledge and a key administrative decision that this Court must afford deference. The
United States Equal Employment Opportunity Commission (EEOC) is the agency entrusted to
enforce Title VII’s provisions. Kuhn, supra note 4, at 980. In a unanimous decision, the EEOC
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held that gender identity discrimination falls within the ambit of sex discrimination. Macy v.
Holder, Appeal No. 0120120821, 2012 WL 1435995, at *5 (E.E.O.C. Apr. 20, 2012).
Significantly, this Court granted deference to the EEOC in all but one sex discrimination case it
reviewed.10 In 1971, this Court determined that “the administrative interpretation by the
[EEOC]” must be granted “great deference.” Griggs v. Duke Power Co., 401 U.S. 424, 433-34
(1971). Therefore, this Court should adopt the broad definition of sex discrimination because it
rightfully extends Title VII coverage to transgendered employees.
In this case, the Court should find that Ms. Rite is protected under Title VII. First, Title
VII protects Ms. Rite as a transgender woman from discrimination based on her gender identity.
Like the employer in Smith, who considered the plaintiff to be an exemplary employee until he
expressed himself as a woman, in this case, Beetz also changed its view of Ms. Rite as soon as
she expressed herself as a woman. Throughout Ms. Rite’s long employment, Beetz “always”
considered her “one of [its] most valued employees.” (R. at 4, 31.) However, Mr. Young began
to treat Ms. Rite differently almost immediately after she began to express herself as a woman.
(R. at 7-8.) Within a month of presenting herself as a woman, Mr. Young denied Ms. Rite a
promotion and quickly transferred her to an obscure department. (Id.) Like in Barnes, where the
court inferred discriminatory animus from the employer’s comments about the plaintiff’s
appearance, in this case, Mr. Young’s comments create a similar inference. Mr. Young focused
on Ms. Rite’s new appearance because he stated that he was apprehensive about the company’s
“image” and wanted to ensure Ms. Rite had “less public visibility.” (R. at 8.)
Second, under Price Waterhouse, Ms. Rite is protected as a biological male against sex
stereotyping. Like the plaintiff in Barnes, who did not meet his employer’s expectations for
10
Michael J. Vargas, Title VII and the Trans-Inclusive Paradigm, 32 LAW & INEQ. 169, 198 (2014) (stating “Only
once has the Court declined to follow EEOC’s lead” in a sex discrimination case, which ultimately ended in a
“Congressional rebuke” concerning pregnancy discrimination).
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masculinity because he wore makeup and painted his nails, in this case, Ms. Rite’s appearance
did not conform to Mr. Young’s standards of masculinity. Ms. Rite adopted a feminine
appearance by wearing feminine clothing and makeup, growing out her hair, and painting her
nails. (R. at 7.) Accordingly, as a biological male, she does not conform to masculine
stereotypes. A reasonable jury could infer from Beetz’ concerns with Ms. Rite’s “image” that its
decision to hide her from “public visibility” was impermissibly based on Ms. Rite’s
nonconformance to masculine stereotypes. (R. at 8.)
In conclusion, Ms. Rite is protected against sex discrimination based on her gender
identity or her failure to conform to masculine stereotypes. Therefore, this Court should affirm
the Thirteenth Circuit’s decision and deny Beetz’ motion to dismiss Ms. Rite’s Title VII claim.
B.
Ms. Rite impermissibly suffered adverse employment actions when she was
denied a promotion and transferred to a substantially different job based on
her gender.
This Court should hold that Ms. Rite sufficiently pleaded a sex discrimination claim
because she was qualified for a promotion that was given to a non-transgendered employee who
conformed to masculine stereotypes. Transgendered employees deserve protection against
adverse employment actions because they should not have to choose between medical treatment
and a stable income. Beetz did not give Mr. Jackson the promotion based on his qualifications
because Ms. Rite was more qualified. (R. at 4, 6, 31-32.) These facts suggest that Beetz
promoted Mr. Jackson and reassigned Ms. Rite because Mr. Jackson conformed to masculine
stereotypes and a masculine gender identity, while Ms. Rite did not. (R. at 7-8.) Therefore,
Beetz’ motion to dismiss Ms. Rite’s sex discrimination claim should be denied.
A plaintiff who is a member of a protected class, like Ms. Rite, can establish a sex
discrimination claim by showing that (1) she was qualified for a promotion; (2) she was denied
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the promotion; and (3) an employee who was not a member of the protected class received the
promotion. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). When gender is a
motivating factor in an adverse employment action, it creates an inference of intentional sex
discrimination. See Price Waterhouse, 490 U.S. at 241. Adverse employment actions include
decisions that affect an employee’s compensation, terms or conditions of employment, such as
reassignment to “new and substantially less desirable duties.” Burlington Northern & Santa Fe
Ry. v. White, 548 U.S. 53, 79 (2006).
Courts infer discriminatory animus when an employer has suspicious timing behind a
change to the employee’s job duties. For example, in Maldonado-Gonzalez, the plaintiff was a
female officer who had worked for the Commonwealth of Puerto Rico Police Department for
three years until she was reassigned to the Special Arrests Unit. Maldonado-Gonzalez v. P.R.
Police, 2013 U.S. Dist. Lexis 31800, at *3-4 (D.P.R. 2013). During her first day of work at the
new unit, her employer restricted her job duties, “forced her to give up her assigned arrests to
other male officers,” and told her “to lower the intensity of her work” so that her male coworkers
would not become jealous. Id. at *4. The court held that the plaintiff alleged a sufficient claim of
sex discrimination. Id. at *8. In its reasoning, the court inferred from the circumstantial evidence
that “her job duties were limited or taken away due to her sex.” Id.
This Court should recognize that all employees, including Ms. Rite, deserve protection
against discriminatory employment actions. People who are transgender have historically
endured “hate, violence, and discrimination.”11 The majority of transgendered employees
11
Phyllis Randolph Frye, The International Bill of Gender Rights vs. the Cider House Rules: Transgenders Struggle
with the Courts over What Clothing They Are Allowed to Wear on the Job, Which Restroom They Are Allowed to
Use on the Job, Their Right to Marry, and the Very Definition of Their Sex, 7 WM. & MARY J. OF WOMEN & L. 133,
139 (2000).
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experience adverse treatment in the workplace or take actions to avoid such treatment.12 Without
Title VII protections, transgendered individuals are not adequately self-sufficient because they
cannot secure stable employment. Frye, supra note 11, at 175. Title VII prohibits adverse
employment decisions that are motivated by an employee’s protected status rather than his or her
performance and job qualifications. See Cnty. of Wash., 452 U.S. at 178.
This Court should not adopt a narrow definition of sex discrimination because it would
force transgendered employees to choose between medical treatment and stable income.
Physicians recommend that individuals diagnosed with GD present themselves in their selfidentified genders at work, participate in hormone treatment, and undergo gender reassignment
surgery. Taylor, supra note 7, at 1167. This treatment regimen physically changes the
employee’s appearance and is noticeable to the employer. Accordingly, transgender employees
face a precarious dilemma if employers may lawfully act adversely against them. The
transgendered employees would have to choose between following their doctor’s orders to
change their appearance and suppressing their transgender identity to save their jobs. No
employee should be forced to forego a paycheck to adhere to his or her medical treatment.
Prohibiting adverse employment actions against transgendered employees is the better
approach because it protects a transgendered person’s ability to work while still seeking medical
treatment. Therefore, this Court should adopt a broad interpretation of sex discrimination that
would afford transgendered employees necessary protection.
In this case, the Court should find that Ms. Rite has sufficiently pleaded the final
elements of her sex discrimination claim. First, Ms. Rite was qualified for the Executive
12
Jaime M. Grant et al., Injustice at Every turn: A Report of the National Transgender Discrimination Survey, 3
(2011), available at http://www.thetaskforce.org/static_html/downloads/reports/reports/ntds_summary.pdf (stating
“Ninety percent (90%) of those surveyed reported experiencing harassment, mistreatment or discrimination on the
job or took actions like hiding who they are to avoid it.”)
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Distributor position that she was ultimately denied. (R. at 4, 6, 31.) Mr. Young sought a
candidate who had worked for the company for at least seven years, had displayed an exemplary
work performance, and “appropriately presented Beetz.” (R. at 6.) At the time of her promotional
interview, Ms. Rite had worked for Beetz for nine consecutive years and excelled at her position.
(R. at 4, 6-7.) For example, Ms. Rite’s Employee Performance Review indicated “Good” or
“Excellent” scores in four out of five rating categories and her lowest score was “Satisfactory.”
(R. at 31.) Additionally, her manager commented that she “has always been one of our most
valued employees.” (Id.). Ms. Rite had also developed a strong rapport with investors who
“preferred to meet with [Ms.] Rite, rather than other sales consultants” such as Mr. Jackson. (R.
at 4, 6.) The record indicates that “[Mr.] Young was well aware of [Ms.] Rite’s exceptional
performance” and ability to build rapport, but he promoted Mr. Jackson instead. (R. 6-7.)
Second, Mr. Jackson’s qualifications were inferior to Ms. Rite’s qualifications and could
not have served as the basis for his promotion. Ms. Rite earned a promotion to Lead Sales
Consultant based on her record for having “the highest sales numbers” and “the most innovative
brands.” (R. at 4.) In sharp contrast, Mr. Jackson only has “an impressive sales record” and “a
few brands.” (R. at 6.) The employees also differ based on their Employee Performance
Reviews. (R. at 31-32.) Ms. Rite boasts an overall 4.1/5.0 rating based on a “Good” or
“Excellent” score on five out of six categories. (R. at 31.) Mr. Jackson, on the other hand, scored
a mere 3.5/5.0 overall rating, did not receive an “Excellent” score on any category, and
performed worse than Ms. Rite on five out of six categories. (R. at 31-32.) Furthermore, at the
time of their interviews, Ms. Rite had established a nine-year work record with Beetz that
resulted in her supervising Mr. Jackson (R. at 4, 6-7.) Despite being Ms. Rite’s subordinate and
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barely meeting the minimum year requirement for the position, Mr. Jackson received a
promotion that was two steps above his current title as a regular Sales Consultant. (Id.)
Third, the real basis for Mr. Jackson’s promotion over Ms. Rite was his adherence to
masculine stereotypes or his non-transgender identity. The record implies that Ms. Rite was the
only transgendered employee. (See R. at 8.) Accordingly, Ms. Rite lost the Executive Distributor
position to Mr. Jackson, who was not transgendered. (R. at 7.) Furthermore, like the employer in
Maldonado-Gonzalez, who restricted the plaintiff’s job duties shortly after reassignment, in this
case, Beetz contrived two adverse employment actions against Ms. Rite under suspicious timing.
Ms. Rite excelled at Beetz for nine years without the company taking a single adverse action
against her. (R. at 4, 7.) However, during the month that Ms. Rite finally expressed her gender
identity, she lost a substantial promotion. (R. at 7.) Moreover, a mere one week later, she was
reassigned to a new position that essentially hid her from the public. (R. at 7-8.) A reasonable
jury could infer that Ms. Rite was exiled to an obscure job that significantly restricted her access
to investors because she is transgendered or did not conform to masculine stereotypes. Since Mr.
Jackson apparently conformed to masculine stereotypes and was not transgendered, he was
rewarded with a substantial promotion he did not deserve on merit.
In conclusion, this Court should hold that Ms. Rite pleaded a sufficient sex discrimination
claim because Beetz denied her a promotion based on her transgender identity or her refusal to
adhere to masculine stereotypes. Additionally, suspicious timing infers discriminatory animus
because she lost her promotion and was reassigned shortly after she began expressing herself as a
woman. A reasonable jury could infer that Mr. Young was impermissibly motivated by gender
when he focused on Ms. Rite’s “image” and “public visibility.” Despite having inferior
qualifications, Mr. Jackson received the promotion instead of Ms. Rite. It is reasonable to infer
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that Mr. Jackson’s promotion was impermissibly motivated in part by his conformance to
masculine stereotypes or his non-transgender identity. Therefore, this Court should affirm the
Thirteenth Circuit’s decision and deny Beetz’ motion to dismiss Ms. Rite’s sex discrimination
claim.
II.
THIS COURT SHOULD QUALIFY MS. RITE’S GENDER DYSPHORIA AS A
SERIOUS CONDITION THAT REQUIRES GENDER REASSIGNMENT
SURGERY AND ADOPT THE COMBINATION STANDARD FOR INCAPACITY
BECAUSE IT COMPORTS WITH MEDICAL SCIENCE AND PROGRESSES
THE FMLA’S PURPOSE.
The Thirteenth Circuit properly reversed the district court’s grant of summary judgment
for Beetz on Ms. Rite’s FMLA claim. This Court should affirm the Thirteenth Circuit’s decision
because gender dysphoria (“GD”) is a “serious health condition” that necessitates gender
reassignment surgery under the FMLA. The FMLA guarantees employees who suffer from
“serious health conditions” the right to take unpaid job-protected leave. 29 C.F.R. § 825.100. The
Act defines a “serious health condition” as an illness, injury, impairment, or physical or mental
condition that requires either (1) inpatient care in a hospital or (2) continuing treatment by a
healthcare provider. 29 U.S.C.A. § 2611(11) (West). The Department of Labor (“DOL”)
regulations guide employers to grant leave for “continuing treatment” when the employee suffers
from any of several types of impairment including “chronic conditions.” See 29 C.F.R. §
825.115. An individual who suffers from a chronic condition qualifies for leave when the
condition (1) causes incapacity and (2) requires continuing treatment. 29 C.F.R. § 825.115(c).
Courts differ on the type of evidence an employee can show to demonstrate incapacity.
See 29 U.S.C.A. § 2613 (West); see also 29 C.F.R. § 825.305. The Fifth13 and Ninth14 Circuits
13
14
Lubke v. City of Arlington, 455 F.3d 489, 495 (5th Cir. 2006).
Marchisheck v. San Mateo Cnty., 199 F.3d 1068 (9th Cir. 1999).
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embrace the Lay Testimony Standard that only requires an employee’s own testimony to show
“incapacity.” The Third,15 Seventh,16 and Eighth17 Circuits established the Combination Standard
that allows an employee to present lay and medical evidence. Finally, the Sixth Circuit18 strictly
construes the regulations that require an employee to bring medical evidence to satisfy the
Medical Testimony Only Standard. Under any approach, Ms. Rite was incapacitated by her GD.
Though Courts and the regulations differ as to the precise standard for incapacity, they
agree that the FMLA guarantees leave when an employee misses work for a necessary
procedure. Furthermore, an employee can qualify as incapacitated without demonstrating a
complete inability to work. See Hodgens v. General Dynamics Corp., 144 F.3d 151, 164 (1st Cir.
1998). Once an employee demonstrates incapacity, the employee satisfies the second prong by
visiting a doctor two or more times per year to treat a single underlying condition. 29 C.F.R. §
825.115.
This Court should hold that gender reassignment surgery is a necessary treatment for GD
for three reasons. First, Federal Courts increasingly recognize gender reassignment surgery as
necessary. Second, the medical community recognizes gender reassignment surgery as
necessary. Finally, the federal government recognizes reassignment surgery as necessary in other
contexts.
Ms. Rite’s GD meets both prongs of the “chronic condition test” and qualifies as a
serious health condition that entitles her to job-protected leave under the FMLA. Ms. Rite’s GD
incapacitated her because she missed work to undergo gender reassignment surgery, which is a
medically necessary treatment for GD. Accordingly, the Act prevents employees from missing
necessary medical appointments due to work conflicts by ensuring protected leave for such
15
Schaar v. Lehigh Valley Health Servs, Inc., 598 F.3d 156, 161 (3d Cir. 2010).
Haefling v. United Parcel Serv., Inc., 169 F.3d 494, 499-500 (7th Cir. 1999).
17
Rankin v. Seagate Techs., Inc., 246 F.3d 1145, 1148-49 (8th Cir. 2001).
18
Culpepper v. BlueCross BlueShield of Tenn. Inc., 2009 U.S. App. LEXIS 8291, at ••14-15 (Apr. 20, 2009).
16
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visits. Therefore to meet the first prong of the “chronic condition test,” an employee only needs
to show that she sought medical treatment necessitated by her condition. Ms. Rite also satisfies
the second prong of the “chronic condition test” because she regularly attended psychotherapy
and hormone treatment sessions for more than one year before she requested leave. Therefore,
this Court should affirm the ruling of the Thirteenth Circuit because Ms. Rite satisfies both
requirements of a chronic condition under the Act.
A.
Gender reassignment surgery is a medically necessary treatment for gender
dysphoria.
This Court should affirm the Thirteenth Circuit’s decision and include GD as a serious
health condition because Ms. Rite’s chronic condition both incapacitated her and required
continuing treatment. The FMLA protects employees who seek leave for chronic conditions. 29
C.F.R. § 825.115(c). Although the legislative history embraces a flexible standard as to when a
condition merits protection, the Act ensures protection when the employee’s condition
incapacitates her and requires continuing treatment. Id. Therefore, an employee is entitled to
leave for a chronic condition when she demonstrates her treatment is necessary and continuous.
1. The Incapacity requirement.
The legislative history provides a flexible approach for determining the scope of “a
serious health condition” under the Act. S. Rep. No. 103-3, at 25; H. Rep. No. 103-8(I), at 40.
The House and Senate reports indicate that a condition’s effects and extent of necessary
treatment govern coverage – not a particular diagnosis. See Miller v. AT&T Corp., 250 F.3d 820,
835 (4th Cir. 2001). Instead, courts focus “on the effect of an illness on the employee and the
extent of necessary treatment rather than on the particular diagnosis.” Id. The court in Miller
concluded that the regulations allow tolerance for illnesses Congress did not immediately
consider for inclusion into the Act. Id. Additionally, GD is supported by decisions in Federal
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Courts, the medical community, and continues to receive coverage in pending legislation and
agency decisions. Therefore, Ms. Rite’s GD incapacitated her entitling her to FMLA coverage.
a. Support in the Federal Courts
In O’Donnabhaim, the tax court was asked to determine the viability of income tax
deductions for expenses related to GD. O’Donnabhaim v. Comm’r of Internal Revenue, 134 T.C.
34 (2010). Finding for the plaintiff, the court held that a patient diagnosed with GD may deduct
the costs of hormone replacement therapy and gender reassignment surgery as “medically
necessary expenses.” 134 T.C. 34 (2010).
Further, the district court improperly relied on peripheral authority for its conclusion that
reassignment surgery is not a medical necessity. (R. at 20.) The district court, in fact, cited only
one case, despite its claim that “several courts have discussed gender dysphoria outside the
FMLA context.” (Id.) The district court’s reliance on the First Circuit’s decision in Kosilek was
improper. Kosilek v. Spencer, 774 F.3d 63 (1st Cir. 2014). Kosilek materially differs from the
present case because that court applied an 8th Amendment standard to a prison’s failure to
provide reassignment to an inmate suffering from GD. Id. The district court explicitly
acknowledged that Kosilek applied a higher standard and relied on it anyway. Id. at 95-96. The
district court’s reliance is misplaced because the court in Kosilek unambiguously declined to
determine if reassignment surgery is medically necessary. Id. As a result, all this Court can draw
from Kosilek is that a prison’s failure to provide reassignment surgery is not cruel and unusual
punishment.
b. Support From the Medical Community
This Court should affirm the Thirteenth Circuit’s ruling that gender reassignment surgery
is a necessary treatment for GD because the medical community endorses this understanding.
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Gender reassignment surgery is necessary for an individual suffering from GD. See Kosilek v.
Spencer, 774 F.3d 63, 103 (1st Cir. 2014) (citing E. Coleman, et al., Standards of Care for the
Health of Transsexual, Transgender, and Gender–Nonconforming People, Sixth Version, 18,
INTERNATIONAL JOURNAL OF TRANSGENDERISM (2011)).19 Leading authorities in psychology
accept GD as a serious medical condition. Moreover, insurance carriers, health benefit agencies,
and federal laws recognize gender reassignment surgery as necessary for GD treatment.
Prominent medical research acknowledges that gender reassignment surgery is the only
viable option to affirm a transgendered person’s self-identified gender. See S.J. Langer, Our
Body Project: From Mourning to Creating the Transgender Body, 15 INT'L J. TRANGENDERISM
66, 67 (2014). Major medical and mental health organizations such as the American Psychiatric
Association,20 the World Health Organization,21 the American Medical Association,22 and the
American Psychological Association,23 have all confirmed GD as a serious medical condition.
See AM. PSYCH. ASS’N, Diagnostic and Statistical Manual of Mental Disorders, 451-452 (5th ed.
2013). Also, appellate courts24 recognize the Harry Benjamin Standards of Care established by
medical authorities to determine the level of clinical distress sufficient for a GD diagnosis. See
WORLD PROF’L ASS’N FOR TRANSGENDER HEALTH, Standards of Care for the Health of
Transsexual, Transgender, and Gender Non-Conforming People 1-2 (Eli Coleman et al. eds., 7th
ed. 2012). These standards confirm wide acceptance that gender reassignment surgery is a
19
In 2011, the seventh version of the Standards of Care was published. See World Professional Ass’n for
Transgender Health (“WPATH”), Standards of Care for the Health of Transsexual, Transgender, and GenderNonconforming People, Version 7 (2011).
20
Jack Drescher & Ellen Haller, AM. PSYCHIATRIC ASS’N, Position Statement on Access to Care for Transgender
and Gender Variant Individuals (2012).
21
World Health Organization, Disorders of Adult Personality and Behaviour (F60-F69), Chapter V Mental and
Behavioural Disorders (F00-F99) (2007), http://apps.who.int/classifications/apps/icd/icd10online2007/
index.htm?gf60.htm.(2007).
22
See Brief for Medical and Mental Health Professional: American Medical Association, et al. as Amici Curiae
Supporting Appellees at 1, Fields v. Smith, 653 F.3d 550 (7th Cir. 2011) (Nos. 10-2339, 10-2466).
23
Barry S. Anton, Proceedings of the American Psychological Association for the Legislative Year 2008, 64 AM.
PSYCHOL. 372 (2009).
24
De’Lonta v. Johnson, 708 F.3d 520, 522-23 (4th Cir. 2013); Kosilek v. Spencer, 774 F.3d 63, 70 (1st Cir. 2014).
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necessary treatment for people suffering from GD. Thus, outside FMLA coverage, GD is now a
per se serious medical condition.
c. Government Agency Support
As further evidence of the growing support for GD, government insurance policies
increasingly cover gender reassignment surgery and other necessary treatments for GD. In a
Medicare National Coverage Determination, an Appeals Board contemplated the coverage of
GD. See NCD 140.3 Transsexual Surgery, Docket No. A-13-87, Decision No. 2576 (2014). The
Board heard expert testimony focusing on numerous medical studies and it concluded that
gender reassignment surgery “is the most appropriate treatment to alleviate the suffering of
extremely gender dysphoric individuals.” Id. at 17 (citing Luk Gijs & Anne Brewaeys, Surgical
Treatment of Gender Dysphoria in Adults and Adolescents: Recent Developments, Effectiveness,
and Challenges, 18 ANN. REV. SEX RES. 178-224 (2007)). The Appeals Board found that after
the person’s gender identity is affirmed, gender reassignment surgery causes vast improvements
in the person’s relationships, social settings, and self-acceptance. Id. at 7. But Medicare is not
alone in this finding.
The Patient Protection and Affordable Care Act (“ACA”) and other state laws follow
Medicare’s position allowing coverage for gender reassignment surgery. See Nina Zhang, Patient
Protection and Affordable Care Act Could Expand Coverage for Gender Dysphoria, 26 The
Health Lawyer, Dec. 2013 (explaining future ACA expansion to cover more inclusive benefits in
the workplace). For example, San Francisco afforded its city employees coverage for gender
reassignment surgery.25 Furthermore, both California26 and Oregon27 prohibit any insurance
25
Heather Knight, San Francisco to Cover Sex Change Surgeries for All Uninsured Transgender Residents,
SFGATE, Nov. 12, 2012.
26
Letter No. 12-K: Gender Nondiscrimination Requirements, CALIF. DEP’T OF MANAGED HEALTH CARE (Apr. 9,
2013).
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carrier from excluding transsexual surgery from coverage. Congress is also considering an
expansion of the ACA because gender reassignment surgery is now viewed as an imperative and
necessary procedure for the individual to live a normal life. See Davidson v. Aetna Life &
Casualty Ins. Co., 420 N.Y.S.2d 450, 451 (1979).
2.
The Continuing Treatment Requirement
Once an employee demonstrates incapacity, she must also show that she sought
continuing treatment for her condition in order to qualify for leave for a chronic medical
condition. To meet the “continuing treatment” requirement, the employee must make periodic
visits to a health care provider and continue the treatment over an extended period of time. 29
C.F.R. § 825.115(c). The regulations define periodic visits as those that occur at least twice per
year. Id. The language “continues over an extended period of time” includes recurring episodes
of a single underlying condition. Id. The FMLA does not require Ms. Rite’s condition to
completely incapacitate her from working. See S. Rep. No. 103-3, at 25. Rather, the Act merely
requires that the individual is unable “to work, attend school or perform other regular daily
activities due to the serious health condition, treatment therefore, or recovery therefrom.” 29
C.F.R. § 825.113(b). An individual’s visits to a doctor that lead to a diagnosis of a serious health
condition are also included within the FMLA. Dalton v. Manor Care of West Des Moines IA.,
LLC, 782 F.3d 955 (8th Cir. 2015) (citing Phillips v. Mathews, 547 F.3d 905, 910 (8th Cir.
2008)). Ms. Rite’s condition forced her to take five weeks off of work. (R. at 9.) Therefore, Ms.
Rite’s GD is a chronic serious health condition entitling her to protected leave under the FMLA.
In this case, the Court should find that Ms. Rite satisfies the continuing treatment
requirement of the chronic condition test. Ms. Rite’s GD required periodic visits for hormone
27
Legislative Counsel Committee, CHAPTER 659A—Unlawful Discrimination in Employment, Public
Accommodations and Real Property Transactions; Administrative and Civil Enforcement (2013).
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replacement therapy for almost a whole year after she notified Mr. Young of her intention to
undergo gender reassignment surgery. (R. at 7.) Though her notice did not specify a need for
FMLA leave, Ms. Rite told Mr. Young she was seeing a physician and planned to undergo
gender reassignment surgery at the end of the year. (Id.) Ms. Rite provided Beetz notice and
Beetz failed to apprise her with FMLA documentation. Unlike the plaintiff in Dalton, who had a
short-term illness that did not necessitate continuous physician care, in this case, Ms. Rite’s GD
diagnosis required continuous hormone replacement therapy. (R. at 5, 7.)
The nature of Ms. Rite’s chronic health condition is distinguishable from cases where the
employee merely has a recurring health issue. For example, in Dalton, an employee suffering
from Chronic Kidney Disease sought FMLA coverage for a work absence. 782 F.3d at 958. The
court held that FMLA coverage did not extend to her recurring health issue because it was
attributed to obesity. Id. In its reasoning, the court determined that recurring health issues are
defined as short-term illnesses that doctors do not qualify as serious health conditions. Id. at 962.
Further, Ms. Rite’s sick leave for hormone replacement therapy is included within FMLA
coverage because she notified Mr. Young of her continuing condition and intentions for surgery.
Beetz’ failure to extend appropriate FMLA coverage to her leave directly resulted in an
interference with Ms. Rite’s FMLA rights. Although Beetz allowed Ms. Rite to utilize sick leave,
her medical treatment required her to surpass her sick leave allotment and resulted in her
termination. Ms. Rite was entitled to FMLA leave for this time and it would have saved her job.
Id. Accordingly, Ms. Rite’s notice to Mr. Young should have sufficiently triggered the FMLA
process. Id. Beetz failed to take the appropriate actions to provide Ms. Rite notice she was
entitled to FMLA coverage. Therefore, Ms. Rite’s hormone replacement therapy constitutes
continuing treatment under the FMLA.
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B.
The Combination Standard for incapacity best balances the FMLA’s
purpose of accommodating the employer’s need to prevent abuse with the
employee’s need for flexible job-protection and embraces a DOL process
already in place.
This Court should adopt the Combination Standard because it utilizes a procedural
scheme that comports with the FMLA’s purpose and creates flexibility to allow for medical and
social awareness. Through the use of certifications, recertification, second and third opinions,
authentications, and clarifications, the employer can make objective leave determinations and
avoid abuse. 29 C.F.R. §§ 825.305-313. Under this procedure, Beetz could have challenged Ms.
Rite’s certification for leave. However, Beetz never attempted to comply with the procedure.
Instead, Beetz requested certification and denied Ms. Rite’s leave after eighty-four days. (R. at
9.) Furthermore, Ms. Rite’s medical evidence is sufficient to prove her GD required gender
reassignment surgery under the Combination Standard or, in the alternative, the Medical
Testimony Only or Lay Testimony standards. Therefore, under any standard to determine
incapacity, Ms. Rite was incapacitated as defined for purposes of the Act.
1. The Combination Standard is the Best Standard
The ambiguous DOL regulations forced courts to establish three different standards for
determining medical evidence of incapacity. The Fifth28 and Ninth29 Circuits embrace the Lay
Testimony Only Standard, which does not require medical evidence for an employee to prove
her incapacity. Contrarily, the Medical Testimony Only standard, embraced by the Sixth
Circuit,30 has held that only medical testimony can prove incapacity. Finally, the Third,31
28
Lubke v. City of Arlington, 455 F.3d 489, 495 (5th Cir. 2006).
Marchisheck v. San Mateo Cnty., 199 F.3d 1068 (9th Cir. 1999).
30
Culpepper v. BlueCross BlueShield of Tenn. Inc., 2009 U.S. App. LEXIS 8291, at ••14-15 (Apr. 20, 2009).
31
Schaar v. Lehigh Valley Health Serv., 598 F.3d 156, 161 (3d Cir. 2010).
29
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Seventh32 and Eighth33 Circuits embrace the Combination Standard that combines the previous
two standards to allow for both medical and lay testimony to prove incapacity.
The Combination Standard balances the employee’s need for protected medical leave and
the employer’s need to prevent abuse. For example, in Schaar, a medical receptionist sought
treatment for low back pain, fever, nausea and vomiting. Schaar, 598 F.3d 156, 157 (3d Cir.
2010). Her physician prescribed an antibiotic to treat an anti-inflammatory in her back and
recommended two days off work for recovery. Id. However, the plaintiff had preplanned
vacation days that coincided with her requested FMLA leave causing her employer to question
the legitimacy of her FMLA claim. Id. at 157-58. Her employer ultimately found her claim
frivolous and terminated her employment. Id. The Third Circuit held that the plaintiff was
entitled to FMLA coverage and that lay testimony may supplement medical evidence to establish
a basis for incapacity. Id. at 161. In its reasoning, the court focused on the necessity for medical
evidence but it rejected unsupported lay testimony as a standard for fear it would create “too
heavy a burden on [the] employer to inquire into an employee’s eligibility for FMLA leave based
solely on the employee’s self-diagnosed illness.” Id.
The combination standard best comports with the FMLA’s statutory purpose, language,
and designated DOL regulations. This standard balances the practical function of medical
evidence and administrative concerns by developing a sound, rationale, and functional standard
to determine incapacity. Moreover, this standard adheres to existing statutory construction
adjudicating friction between employers and employees concerning “serious health conditions.”
See 29 C.F.R. § 825.307.
2. Beetz ignored the Department of Labor Regulations
32
33
Haefling v. United Parcel Servs., Inc., 169 F.3d 494, 499-500 (7th Cir. 1999).
Rankin v. Seagate Techs. Inc., 246 F.3d 1145, 1148-49 (8th Cir. 2001).
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This Court should afford adequate deference to the DOL because Congress entrusts the
DOL to interpret and enforce the FMLA. See 29 U.S.C. § 2654. The regulations promulgated by
the DOL set out layers of abuse protection that prevent granting unnecessary leave. See generally
29 C.F.R. §§ 825.305-313. Upon the employer’s request, the DOL regulations mandate a
validation procedure for any medical certification provided by the employee’s health care
provider. See 29 C.F.R. § 825.305. After notice is provided to an employee, the employee must
then provide certification to support his or her leave request by explaining why he or she is
“unable to perform one or more of the essential functions of the employee’s position.” 29 C.F.R.
§ 825.305; see also 29 U.S.C. 2654.
Consequently, the employee’s certification imposes a presumption of medical necessity
to protect an employee for treatment of a serious health condition. See Smith v. Univ. of Chi.
Hosps., No. 02 C 0221, 2003 WL 22757754, at *8 (N.D. Ill. Nov. 20, 2003). The employer may
only rebut the presumption with contrary medical evidence. Id. The first step allows an employer
to request a clarification and authentication from the employee’s health care provider. 29 C.F.R.
§ 825.307; see also 29 U.S.C. 2654. Subsequently, the employer may, at its own expense, require
the employee to obtain a second opinion. Id. Finally, if the employer’s second opinion differs
from the original medical certification, the employer may obtain a third opinion to settle the
discrepancy. Id.
Beetz failed to follow the appropriate procedure when it processed Ms. Rite’s FMLA
leave request. Beetz misled Ms. Rite by offering reassurance for her claim and then denying it
four months later. (R. at 9.) Additionally, Beetz never challenged Ms. Rite’s incapacity or
notified her of any deficiencies with her certification. Beetz also took no action to authenticate
Ms. Rite’s doctor’s certification before it unilaterally denied her claim months after she
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submitted her request to human resources. Beetz completely disregarded Ms. Rite’s right to
FMLA and delayed her request long enough to manufacture grounds to terminate her
employment.
Ms. Rite is entitled to job protection under the FMLA for the medical leave she needed to
undergo a necessary gender reassignment surgery. Ms. Rite has the requisite medical evidence to
show her GD is a serious health condition. Therefore, this Court should affirm the Thirteenth
Circuit’s decision to deny the dismissal of Ms. Rite’s FMLA claim.
CONCLUSION
The Respondent respectfully requests this Court to affirm the Thirteenth Circuit’s reversal of the
district court’s judgment.
Respectfully submitted,
Team 8
Counsel for Respondent
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