Supreme Court of the United States I T

No. 16-24
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
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QUESTIONS PRESENTED
1. Whether Erika Rite, a transgender woman, has a lawful claim and is entitled to compensatory
and punitive damages under Section 703 of Title VII of the Civil Rights Act of 1964 against
Beetz, Inc. for employment discrimination on the basis of sex discrimination.
2. Whether Erika Rite’s diagnosis of gender dysphoria qualifies as a “serious health condition”
under the Family Medical Leave Act of 1993, thus entitling her to unpaid job-protected leave
to undergo gender reassignment surgery.
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TABLE OF CONTENTS
QUESTIONS PRESENTED .......................................................................................................... ii
TABLE OF CONTENTS .............................................................................................................. iii
TABLE OF AUTHORITIES ........................................................................................................... v
OPINIONS BELOW ....................................................................................................................... 1
STATUTORY PROVISIONS INVOLVED ................................................................................... 1
STANDARD OF REVIEW ............................................................................................................. 1
STATEMENT OF THE CASE ....................................................................................................... 2
SUMMARY OF ARGUMENT ..................................................................................................... 10
ARGUMENT ................................................................................................................................ 11
I.
RITE HAS A LAWFUL CLAIM UNDER TITLE VII FOR DISCRIMINATION ON THE
BASIS OF SEX. ...................................................................................................................................... 11
A. Title VII prohibits discriminating against an employee for failing to act in accordance
with society’s perception of his or her assigned sex ........................................................................... 11
1. Rite was unlawfully discriminated against by Beetz for failing to
conform to sex stereotypes. ............................................................................. 13
2. Beetz improperly took into consideration Rite’s gender non-conformity
when making employment related decisions. .................................................. 14
B. Under Title VII, discrimination based on a person’s gender identity is also discrimination
because of sex. .................................................................................................................................... 15
1. The legislative intent behind Title VII’s definition of “sex” is broad
enough to encompass a prohibition of discrimination against
transgender indvidiuals ................................................................................... 16
2. Courts have begun to recognize under Title VII discrimination on the
basis of gender identity is discrimination on the basis of sex ........................ 17
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3. This Court should defer to the Equal Employment Opportunity
Commission’s expertise in analyzing discrimination claims. ......................... 18
C. Rite’s termination resulting from the exhaustion of her paid leave was pretext for intentional
discrimination on the basis of sex. ...................................................................................................... 19
II. RITE WAS ENTITLED TO TAKE UNPAID MEDICAL LEAVE UNDER THE FAMILY
MEDICAL LEAVE ACT BECAUSE GENDER DYSPHORIA IS A SERIOUS HEALTH
CONDITION. .......................................................................................................................................... 20
A. Under the FMLA, gender dysphoria is considered a “serious health condition” in both
government and private employment. ................................................................................................ 22
1. Rite suffered from both depression and anxiety, which are recognized
as serious health conditions under the FMLA. ................................................ 24
2. Federal Courts of Appeals have recognized gender dysphoria as a
serious health condition in the legal context of Eighth Amendment
rights for prisoners. .......................................................................................... 25
B.
Rite’s gender reassignment surgery was medically necessary to treat her gender dysphoria..... 27
CONCLUSION ............................................................................................................................. 30
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TABLE OF AUTHORITIES
United States Supreme Court
Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) .......................................................................... 1
Chevron U.S.A. v. Nat’l Res. Def. Council, Inc., 467 U.S. 837 (1984).................................. 23, 24
City of Los Angeles Dep't of Water & Power v. Manhart,
435 U.S. 702 (1978) ...................................................................................................................... 13
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) ..................................................... 11, 19
Meritor Sav. Bank v. Vinson, 477 U.S. 57 (1986) ........................................................................ 12
Oncale v. Sundower, 523 U.S. 75 (1998) ...................................................................................... 18
Pension Ben Guar. Corp. v. LTV Corp., 496 U.S. 633 (1990) ..................................................... 17
Phillips v. Martin Marietta Corp., 400 U.S. 542 (1971) ................................................................ 12
Pierce v. Underwood, 487 U.S. 552 (1988) .................................................................................... 1
Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) ......................................................... 12, 16, 17
St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993) ................................................................... 11
Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248 (1981) ................................................... 11
United States Court of Appeal
Allard v. Gomez, 9 Fed. Appx. 793 (9th Cir. 2001).................................................................... n. 3
Battista v. Clarke, 645 F.3d 449 (1st Cir. 2011)............................................................................ 25
Bonkowski v. Oberg Indus., 787 F.3d 190 (3d Cir. 2015) ...................................................... 22, 23
Brown v. Zavaras, 63 F.3d 967 (10th Cir. 1995) ......................................................................... n.3
Chandler v. Specialty Tires of Am. (Tenn.), Inc.
283 F.3d 818 (6th Cir. 2002) ......................................................................................................... 24
Chepstow Ltd v. Hunt, 381 F.3d 1077 (11th Cir. 2004) ................................................................ 1
Collins v. NTN-Bower Corp., 272 F.3d 1006 (7th Cir. 2001) ...................................................... 24
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Cuoco v. Moritsugu, 222 F.3d 99 (2d Cir. 2000) ........................................................................ n. 3
De'lonta v. Angelone, 330 F.3d 630 (4th Cir. 2003) ................................................................... n. 3
Estate of Landers v. Leavitt, 545 F.3d 98 (2d Cir. 2009) .............................................................. 23
Fields v. Smith, 653 F.3d 550 (7th Cir. 2011) ............................................................................... 25
Glenn v. Brumby, 663 F. 3d 1312 (11th Cir. 2011) ...................................................................... 18
Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252 (1st Cir. 1999) ................................. 15
Holloway v. Arthur Andersen & Co., 566 F.2d 659 (9th Cir. 1977) ............................................ 12
King v. Preferred Tech. Group, 166 F.3d 887 (7th Cir. 1999) ...................................................... 20
Meriwether v. Faulkner, 821 F.2d 408 (7th Cir. 1987). .............................................................. n. 3
Nichols v. Azteca Rest. Enters., Inc., 256 F.3d 864 (9th Cir. 2001) ............................................. 15
Phillips v. Mich. Dept. of Corr., 932 F.2d 969 (6th Cir. 1991),
aff'g. 731 F. Supp. 792 (W.D. Mich. 1990) ................................................................................. n. 2
Rosenfeld v. S. Pac. Co., 444 F.2d 1219 (9th Cir. 1971) .............................................................. 12
Schwenk v. Hartford. 204 F.3d 1187 (9th Cir. 2000).............................................................. 13, 17
Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004) .................................................................. 15
Spangler v. Fed. Home Loan Bank of Des Moines,
278 F.3d 847 (8th Cir. 2002) ......................................................................................................... 24
White v. Farrier, 849 F.2d 322 (8th Cir. 1988) ........................................................................... n. 3
United States District Court
EEOC v. RG & GR Harris Funeral Homes,
2015 LEXIS 52016 (E.D. Mich. 2015) ......................................................................................... 15
Jadwin v. Cty. of Kern, 610 F. Supp. 2d 1129 (E.D. Cal. 2009) ................................................... 21
Kosilek v. Spencer, 889 F. Supp. 2d 190 (D. Mass. 2012) ............................................. 25, 26, n. 2
Lewis v. High Point Reg'l Health Sys., 79 F. Supp. 3d 588 (E.D.N.C. 2015) .............................. 18
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Lopez v. River Oaks Imaging & Diagnostic Group, Inc.,
542 F. Supp. 2d 653 (S.D. Tex. 2008) ........................................................................................... 15
Norsworthy v. Beard, 74 F. Supp. 3d 1100 (N.D. Cal. 2014). ...................................................... 25
Schmutte v. Resort Condos. Int'l, LLC,
463 F. Supp. 2d 891 (S.D. Ind. 2006)...................................................................................... 20, 21
Schroer v. Billington, 577 F. Supp. 2d 293 (D.D.C. 2008) ...................................................... 17,18
Tully-Boone v. N. Shore-Long Island Jewish Hosp. Sys.,
588 F. Supp. 2d 419 (E.D.N.Y. 2008) ........................................................................................... 24
United States Tax Court
O'Donnabhain v. Comm'r, 134 T.C. 34 (2010) ........................................................... 25, 26, 27, 28
EEOC Administrative Hearing
Macy v. Holder, No. 0120120821, 2012 WL 1435995 (E.E.O.C. 2015) .................................. 8, 18
Federal Statutes
29 U.S.C. § 2615(a)(1) (1993)....................................................................................................... 20
29 U.S.C. § 2654 (1993) ................................................................................................................ 22
42 U.S.C. § 2000e-2(a) (1964) .................................................................................................. 8, 11
Federal Regulations
29 C.F.R. § 825.102 (2015) ........................................................................................................... 23
29 C.F.R. § 825.113(a) (2013) ...................................................................................................... 22
29 C.F.R. § 825.113(b) (2013) ...................................................................................................... 22
29 C.F.R. § 825.114 (2013) ............................................................................................... 22, 23, 24
29 C.F.R. § 825.300(c) (2013) ...................................................................................................... 21
29 C.F.R. § 825.300(e) (2013) ...................................................................................................... 22
29 C.F.R. § 825.301(b)(1) (2013).................................................................................................. 21
29 C.F.R. § 825.302 (2013) ........................................................................................................... 21
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58 Fed. Reg. 31794 (1993) ............................................................................................................ 23
60 Fed. Reg. 2180 (1995) .............................................................................................................. 23
60 Fed. Reg. 2192 (1995) .............................................................................................................. 23
Other Sourcess
About EEOC, U.S. Equal Employment Opportunity Commission,
http://www.eeoc.gov/eeoc/index.cfm (last visited Feb. 12, 2016) ................................................ 18
Eli Coleman et. al, Standards of Care for the Health of Transsexual, Transgender, and GenderNonconforming People, The World Professional Association for Transgender Health (2012),
http://www.wpath.org/uploaded_files/140/files/IJT%20SOC,%20V7.pdf. .................................... 2
Gender Stereotyping, U.S. Equal Employment Opportunity Commission (Aug. 2013),
http://www.eeoc.gov/eeoc/publications/upload/Gender-Stereotyping
-LGBT-brochure-OLC.pdf ...................................................................................................... 18, 19
Letter from John O’Brien, Director, U.S. Office of Personnel Management Healthcare and
Insurance, to All FEHB Carriers (June 13, 2014), https://www.opm.gov/healthcareinsurance/healthcare/carriers/2014/2014-17.pdf ........................................................................... 28
Letter from John O’Brien, Director, U.S. Office of Personnel Management Healthcare and
Insurance, to All FEHB Carriers (June 23, 2015), https://www.opm.gov/healthcareinsurance/healthcare/carriers/2015/2015-12.pdf. ………………………………………………..29
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. Women & L. 133, 202-03 (2000), http://scholarship.
law.wm.edu/wmjowl/vol7/iss1/6 ............................................................................................. 13, 17
Robert C. Bird, More an a Congressional Joke: A Fresh Look at the Legislative History of Sex
Discrimination of the 1964 Civil Rights Act, 3 Wm. & Mary J. Women & L. 137, 161 (1997),
http://scholarship.law.wm.edu/wmjowl/vol3/iss1/6 ...................................................................... 16
Time Limits for Filing a Charge, U.S. Equal Employment Opportunity Commission,
http://www.eeoc.gov/employees/timeliness.cfm (last visited Feb. 12, 2016) ............................... 19
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OPINIONS BELOW
The opinion for the United States District Court for the Southern District of Wagner is
reported at Beetz, Inc., v. Erika Rite, 585 F. Supp. 3d 1 (S.D. Wgr. 2015) and is included in the
record at pages 1–21. The opinion of the United States Court of Appeals for the Thirteenth
Circuit is reported at Erika Rite v. Beetz, Inc., 575 F. 3d 185 (13th Cir. 2015) and is included in
the record at pages 21–30.
STATUTORY PROVISIONS INVOLVED
This case involves Title VII of the Civil Rights Act of 1964 (“Title VII”). 42 U.S.C. §
2000e-2(a). It also involves The Family and Medical Leave Act of 1993 (“FMLA). 29 U.S.C. §
2612 (2009). Specifically, the brief discusses Section 703 of Title VII, which prohibits discrimination on the basis of a persons’s race, color, religion, sex or national origin, and Section 2612 of
the FMLA, which allows eligible employees to take unpaid, job-protected leave because of a
“serious health condition.”
STANDARD OF REVIEW
This case is on appeal from the Thirteenth Circuit’s decision reversing the District
Court’s grant of Beetz’s motion to dismiss. R. at 21. This court reviews questions of law de novo.
Pierce v. Underwood, 487 U.S. 552, 558 (1988), and this court should “accept as true the factual
allegations in the plaintiff's complaint and construe the facts in the light most favorable to the
plaintiff as the non-moving party.” Chepstow Ltd v. Hunt, 381 F.3d 1077, 1080 (11th Cir.
2004). To survive a motion to dismiss, Rite must plead only “enough facts to state a claim to
relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
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STATEMENT OF THE CASE
I.
Factual Background
Erika Rite was born and raised in Trippington, Iowa, a rural town with traditional values.
R. at 3. Rite was born a biological male, and given the name Eric at birth. R. at 3. However,
Erika knew at an early age that she identified as female, and as a result suffered from extreme
confusion about her gender. R. at 3. Concerned that her community would not accept that she
identified as female, Rite decided to leave Iowa aftr graduating high school in 2002. R. at 3. Rite
attended college at Wagner State University in Kompton, Wagner, a town known for its diverse
population and liberal viewpoints—a stark contrast to Trippington. R. at 3. Rite graduated from
Wagner State and continued her education, earning a Master’s degree in Business (“MBA”) with
a concentration in marketing. R. at 3. At this point, Rite was still using her birth name Eric and
expressing herself as a man. R. at 3. Alas, despite leaving Trippington and moving to the much
more liberal town of Kompton, Rite still felt uncomfortable identifying as a man. R. at 3.
With her MBA in hand, Rite was hired by Beetz in 2005 as a sales consultant in the company’s sales department. R. 3-4. Beetz was founded in 1995 by musician Andre Young, who was
born and raised in Kompton. R. at 4. Young strived to maintain a classy and sophisticated image
for Beetz, and the company has since flourished into a multi-billion dollar company under
Young’s direction as CEO. R. at 3-4. As a sales consultant, Rite was responsible for “creating
new brands for Beetz, consulting with company investors, and traveling to meet with representatives of companies and agencies selling Beetz products.” R. at 4. Rite was excellent in her
position, and as recognition of her developing the most innovative brands, generating the highest
sales numbers, and building a strong relationship with Beetz investors, she was promoted to Lead
Sales. R. at 4. In fact, investors preferred to meet with Rite over other sales consultants. R. at 4.
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Unfortunately, despite her success at work, Rite continued to struggle personally. She became increasingly depressed because she sas forced to suppress her true gender identity. R. at 4.
She could not reconcile internally her two personas: expressing herself as male at work and as
female in private. R. at 4. In December 2012, Rite consulted with Dr. Warren Gee (“Dr. Gee”), a
psychotherapist, about her distress and anxiety over her gender identity. R. at 4. She shared with
Dr.Gee her life-long uneasiness with her anatomical sex. R. at 4. After several sessions over a
period of weeks, Dr. Gee diagnosed Rite with gender dysphoria. R. at 4. Gender dysphoria is
defined by the Diagnostic and Statistiual Manual of Mental Disorders as significant distress that
results from “a marked difference between the individual’s expressed/experienced gender and the
gender others would assign him or her.” AMERICAN PSYCHIATRIC ASSOCITAION, DIAGNOSTIC
AND STATISTICAL MANUAL OF MENTAL DISORDERS
(American Psychiatric Ass’n et al. eds., 5th
ed. 2013); R. at 4-5. Sufferers of gender dysphoria desire to live as members of the opposite sex
and often dress and use mannerisms associated with the other gender. R. at 5. Many individuals
with gender dysphoria become socially isolated, whether by choice or through ostracization,
which can contribute to low self-esteem, depression, and anxiety. R. at 5. It was for these reasons
Rite initially sought out the help of Dr. Gee. R. at 4-5.
In January 2013, shortly after Rite was diagnosed with gender dysphoria, she began to
identify as transgender. R. at 5, n. 4. Her state of mind had improved significantly because of her
frequent visits with Dr. Gee and better understanding of her diagnosis. R. at 5. With the assistance of Dr. Gee, Rite researched treatment options, thought extensively about transitioning, and
discussed the implications and risks of surgery over the following year. R. at 5. After thinking
through her options methodically, Rite decided to undergo gender reassignment surgery to
become a woman. R. at 5. Really, she was being “reborn,” as she always felt she should have
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been born female. R. at 5. Rite immediately began saving for the procedure, as it was expensive—costing anywhere from $30,000 to $100,000—and was not covered by Beetz’s Employee
Health Benefits Plan. R. at 5.
To help with the transition, Rite began a hormone replacement therapy prescribed by Dr.
Gee. R. at 5. This therapy influenced changes in her physical appearance as well as emotional
stability. R. at 5. In order for Rite’s physical appearance to more closely resemble that of a
woman, Dr. Gee administered estrogen and testosterone blockers. R. at 5. Dr. Gee also informed
Rite that as a result of this treatment, over the next one to three months, she would begin noticing
decreased muscle mass, softening of the skin, slowed growth in body and facial hair, and breast
growth. R. at 6. Dr. Gee explained that Rite could undergo gender reassignment surgery in two
years, but in the meantime, the hormone therapy would continue to alter her physical appearance.
R. at 6.
In November 2013, a little less than a year after Rite began hormone replacement therapy,
Beetz’s CEO, Andre Young, announced Beetz’s plan to promote a sales consultant to the recently vacated position of Executive Distributor. R. at 6. The Executive Distributor “would be the
primary point-of-contact for all of Beetz’s sales and distribution ventures and would frequently
meet with representatives from other companies and agencies around the world.” R. at 6. The
individual promoted would receive a substantial increase in salary. R. at 6. Young decided to
promote from within the company, wanting to find an employee who “(1) had worked for Beetz
for a minimum of seven years; (2) had an exemplary performance record; and (3) appropriately
presented Beetz to the industry and to its customers.” R. at 6. At the time the position was
announced, Rite had been working for Beetz for roughly eight years, had performed exceptionaly
in sales and product development—as evidenced by her past promotion—and had glowing
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feedback from investors, as well as extensive experience promoting and representing Beetz to the
industry. R. at 6. Young knew Rite met and exceeded the requirements and intended to consider
her for the position. R. at 6. Young considered Rite and one other candidate, O’Shay Jackson, as
the two top contenders for the promotion. R. at 6.
O’Shay Jackson began as a sales consultant at Beetz in 2007. R. at 6. However, Jackson
had not worked for Beetz for at least seven years when the promotion opportunity was announced in November 2013. R. at 6. Although Jackson designed a few brands for Beetz, and did
work with a smaller group of investors, his performance was not as strong as Rite’s. R. at 6, 3132. Jackson’s performance evaluations revealed that his ratings were satisfactory to good, and
that he struggled to stay organized, thorough and accurate with sales data. R. at 32. Further, he
had behavioral problems with other co-workers. R. at 32. On the other hand, Rite’s performance
evaluation showed that her skills were rated mostly good to excellent. R. at 31. The review
described her as “one of our most valued employees.” R. at 31. However, the review also noted
that Rite appeared uncharacteristically distracted and distraught. R. at 31. At the time of the
interview, Rite had been doing hormone replacement therapy for about a year. R. at 5.
In January 2014, Young reviewed the most recent Employee Performance Reviews for
both Rite and Jackson and interviewed both candidates. R. at 7, 31-32. She attended her interview in a traditional man’s business suit and tie. R. at 7. The interview included a discussion of
Rite’s qualificaitons and experiences at Beetz, and Rite voluntarily shared with Young the new
chapter in her life. R. at 7. Believing she had an open and trustworthy relationship with Young,
Rite shared her intent to transition, and that she identified as female. R. at 7. She also explained
that she was under a physician’s care, and was receiving hormone replacement therapy. R. at 7.
She stated she planned to undergo gender reassignment surgery by the end of 2014, and noted
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she would like to be refered to as “Erika” from that point forward. R. at 7. Young simply
thanked Rite for her candor and concluded the interview. R. at 7.
Following the interview, Rite continued receiving hormone replacement therapy, and after about one month, she began presenting as a woman. R. at 7. She wore attire that was considered professional and appropriate for females in the workplace, such as blouses, skirts and low
heels. R. at 7. In reaction to Rite’s outward changes, the Sales Department team started talking
about her transition. R. at 7. Some supported her decision, but others scorned her. R. at 7. Despite
the distracting and hurtful office gossip, Rite’s work continued to be exceptional. R. at 7. Many
of the investors she had been working with for years supported her decision. R. at 7. Importantly,
no investor withdrew his or her financial support from Beetz due to Rite’s transition. R. at 7.
In late February 2014, O’Shay Jackson was promoted to Executive Distributor. R. at 7.
Despite her disappointment, Rite continued working as the lead sales consultant and even congratulated Jackson. R. at 7. One week later, Young informed Rite of his desire to relocate her to
another department with “less public visibility.” R. at 8. Rite was then transferred to the Graphic
Design Department, where she worked as a graphic designer. R. at 8. In the Graphic Design
Department Rite had significantly less contact with both Beetz employees and investors, and any
contact she had with investors was either by telephone or email. R. at 8.
Soon after the transfer, Dr. Gee determined Rite was prepared to move forward with gender reassignment surgery, and as such, referred her to Dr. Romel Dreigh (“Dr. Dreigh”) to
approve her surgery. Once approved, Rite discussed her plans with Tamika Woods (“Woods”),
the Director of Human Resources (“H.R.”) at Beetz. Rite asked about the company’s policy on
medical leave, and Woods referred her to the Beetz Employee Handbook (the “Handbook”). R.
at 8, 33-35. Rite had exchausted the majority of her paid sick leave attending hormone therapy
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sessions with Dr. Gee, so she applied, in writing, for Family Medical Leave Act leave on November 1, 2014. R. at 8. On November 7, 2014, Woods requested a medical certification form in
support of Rite’s requested leave. R. at 8. Rite had the form filled out by Dr. Dreigh and submitted it to Woods the following day. R. at 8. As of November 13, 2014, Rite had not received any
updates regarding her FMLA application, so Rite contacted Woods in hopes of getting more
information. R. at 8. Only then did Woods inform Rite that, due to the unprecedented nature of
her request, her FMLA leave application was escalated to senior management for a final decision. R. at 8. Woods’ respone left Rite concerned about her application, and Rite emailed Young
to further discuss her FMLA application. R. at 8-9. Young informed Rite that her application was
being referred to Beetz’s legal department. R. at 9. He also counseled her to “not to be concerned
about the logistics of the approval procedures” and without providing a specific timeframe, stated
she would be contacted “soon.” R. at 9. Rite was then confident confident that her application
would be approved, and she chose to proceed with her plan to undergo surgery. R. at 9.
On January 30, 2015, two years after Rite’s diagnosis of gender dysphoria and start of her
hormone replacement therapy, Rite underwent gender reassignment surgery and breast augmentation. R. at 9. After surgery, Dr. Dreigh informed Rite that she should stay in bed for at least one
week, but she would be able to return to work within one to two weeks. R. at 9. Dr. Dreigh also
warned Rite about possible complications and advised her to avoid strenuous activities for about
three to four weeks to provide time to heal. R. at 9. On February 1, 2015, three months after Rite
applied for FMLA leave, Woods left Rite a voicemail informing her of her FMLA leave request
denial and stated that any additional time Rite missed would result in disciplinary action due to
Rite having exhausted her accrued paid sick leave. R. at 9. Rite was unaware of the message and
did not review it until February 8, 2015. R. at 9.
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On February 27, 2015, Rite received a call from Woods, in which Woods informed Rite
she was terminated due to her continued absence. R. at 9. Two weeks later, March 13, 2015, Rite
filed a complaint with the Equal Employment Opportunity Commission (“EEOC”) against Beetz
alleging they had engaged in sex discrimination on the basis of transgender identity. R. at 9. Rite
established through her experience and performance at Beetz that she was more than qualified for
the Executive Distributor. R. at 9. Thus, she asserted the position was improperly given to a less
senior, less qualified employee as a result sex. R. at 9. She further alleged she experienced
adverse treatment by fellow employees once she presented as a woman and requested to be
referred to as “Erika.” R. at 9-10. The EEOC investigated Rite’s claimed and determined they
had merit and met the prima facia threshold for sex discrimination under Title VII of the Civil
Rights Act and in light of Macy v. Holder, No. 0120120821, 2012 WL 1435995 (E.E.O.C. 2015).
R. at 10. The EEOC issued Rite a Right to Sue notification along with a determination letter. R.
at 10. Rite promptly filed suit against Beetz, Inc. claiming violations of both Title VII and the
FMLA in the Wagner District Court on April 3, 2015. R. at 10.
II.
Procedural Background
On April 3, 2015, Erika Rite filed suit against Beetz, Inc., her former employer, alleging
Beetz violated Title VII of the Civil Rights Act of 1964 (“Title VII”) when it denied her of a
promotion because of her transgender identiy. 42 U.S.C. § 2000e-2(a) (1964). R. at 2. Rite
further alleged that her medical leave, taken to recover from gender reassignment surgery, is
covered under the Family and Medical Leave Act of 1993 (“FMLA”). Id. In response, Beetz
moved to dismiss these claims, arguing first that Rite was not subjected to sex discrimination
under Title VII, and further, she was not entitled to medical leave under the FMLA because
gender dysphoria does not qualify as a “serious health condition.” Id. The U.S. District Court for
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the Southern District of Wagner concluded that discrimination against a person because he or she
is transgender is not discrimination “because of sex” within the meaning of Title VII, and thus is
not covered by the statute. R. at 10. In finding that Title VII does not prohibit sex discrimination
because of transgender identify, the court deferred to Beetz’s business decision to select the
candidate the company determined was best suited to maintain the brand of the company. R. at
14. The court also held that Rite’s diagnosis of gender dysphoria did not qualify as a “serious
health condition” under the FMLA. R. at 15. Accordingly, the District Court denied the Rite’s
claims and granted Beetz’s motion to dismiss. R. at 2.
The U.S. Court of Appeals for the Thirteenth Circuit reversed the decision of the District
Court. R. at 22. The court held that discrimination resulting from a person’s gender identity is
discrimination on the basis of sex under Section 703 of Title VII. R. at 22. The court found there
was precedent for recognizing discrimination based on gender identity; therefore, it is in fact
prohibited under Title VII. R. at 25. Further, the court reasoned that in light of recent cases
regarding Title VII claims for discrimination, deference should be given to the Equal Employment Opportunity Commission and its expertise concerning these types of claims. R. at 25. The
court also held that recent decisions support the conclusion that gender dysphoria should qualify
under the FMLA as a “serious health condition”, and reassignment surgery may be medically
necessary for this diagnosis. R. at 22, 30.
Beetz filed a writ of certiorari to the Supreme Court of the United States, which this
Court granted on January 11th, 2016.
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SUMMARY OF ARGUMENT
This Court should affirm the decision of the Thirteenth Circuit holding that 1) discrimination based on sex and gender identity is prohibited under Title VII, and 2) gender dysphoria
should qualify as a “serious health condition” under the Family and Medical Leave Act
(“FMLA”), entitling Rite to leave under the Act.
First, sex discrimination is interpreted broadly to include a prohibition of discrimination
on the basis of biological sex, nonconformity to sex stereotypes associated with males or females, and gender identity. As a transitioning transgender female, Beetz discriminated against
Rite for not appearing or acting as in accordance with Beetz’s perception of Rite’s sexual identity. Rite was forthcoming with her intent to transition, and as a result, she was unfairly denied a
promotion and subsequently transferred to a role that greatly limited client interactions. Ultimately, Beetz terminated Rite’s employment while Rite was undergoing medically necessary
procedures to treat her gender identity related medical conditions.
Second, gender dysphoria is widely recognized as a serious health conditions in multiple
contexts of the law. Courts have held that gender dysphoria is a serious health condition for
which sex reassignment surgery may be medically necessary in civil commitment cases. In
addition to suffering from gender dysphoria, Rite also suffered from depression and anxiety,
which have been recognized as serious health conditions under the FMLA. Considering recent
court decisions, and the significant shifts in standards of interpreting the FMLA, this Court
should affirm the Thirteenth Circuit’s holding that gender dysphoria is a serious health condition
under the FMLA, entitling Rite to medical leave after her reassignment surgery.
Accordingly, this court should reward Rite the compensatory and punitive damages for
the Title VII claim and back-pay with interest, attorney’s fees, and cost for the FMLA claim.
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ARGUMENT
I. RITE HAS A LAWFUL CLAIM UNDER TITLE VII FOR DISCRIMINATION ON
THE BASIS OF SEX.
Title VII of the Civil Rights Acts of 1964 prohibits employers from discriminating against
employees on the basis of race, color, religion, sex, or national origin. 42 U.S.C. § 2000e-2(a)
(1964). To prove a case of intentional discrimination a plaintiff must establish that he or she (1)
is a member of a protected class; (2) experienced an adverse employment action; (3) for which
he or she was qualified; and (4) the circumstances that give rise to an inference of unlawful
discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). A defendant may
produce evidence of legitimate, nondiscrimination reasons for their action. Texas Dep’t of Cmty.
Affairs v. Burdine, 450 U.S. 248 (1981). However, the plaintiff has an opportunity to prove the
reasons defendant alleges were merely pretext for discrimination. St. Mary’s Honor Ctr. v.
Hicks, 509 U.S. 502 (1993).
Two elements are at issue in this case: whether Rite is a member of a protected class and
whether the circumstances Rite experienced rise to unlawful discrimination. Rite was born a
biological male; though, she was diagnosed with gender dysphoria and subsequently transitioned
to female. R. at 3-5. Thus, Rite qualifies for three different, but non-mutually exclusive, gender
identity classifications throughout the facts that led to this case: male, transgender, and female.
Rite began working at Beetz as a male. R. at 3-4. Also while employed at Beetz, Rite first
identified as transgender and began transitioning. R. at 5. Soon after completing gender reassignment surgery to finalize her transition as female, Rite was terminated from Beetz. R. at 9.
A. Title VII prohibits discriminating against an employee for failing to act in
accordance with society’s perception of his or her assigned sex.
At issue in this case is Rite’s status as a member of a protected class for purposes of Title
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VII intentional discrimination analysis. The potential class at issue is sex. Thus, it must be
determined how encompassing the term “sex” is under Title VII’s interpretation. Traditionally,
sex was narrowly construed as an effort to only “place women on an equal footing with men.”
Holloway v. Arthur Andersen & Co., 566 F.2d 659, 662 (9th Cir. 1977). The initial cases centered on women not acquiring the same roles as men. See Rosenfeld v. S. Pac. Co., 444 F.2d
1219 (9th Cir. 1971) (ruling that employers may not rely on state labor laws that limit women
based on weight lifting requirements). This interpretation of “sex” has since developed to include
a prohibition of discrimination on the basis of sex plus one additional factor. See Phillips v.
Martin Marietta Corp., 400 U.S. 542 (1971) (employer refused to accept application from
women, but not men, with preschool-aged children). This Court also extended the interpretation
of sex discrimination in 1986 by ruling sexual harassment was always discrimination “because of
sex.” Meritor Sav. Bank v. Vinson, 477 U.S. 57 (1986). Most recently, this Court held that
employment discrimination on the basis of an employee’s lack of conformity to assumptions or
expectations on how a person of a certain sex, male or female, should act was unlawful sex
discrimination per Title VII. Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).
In Price Waterhouse, Ann Hopkins was denied a promotion because partners in her law
firm felt she did not act in the ways expected of a women. Id. Despite being described as ‘“extremely competent, intelligent,’ she was told in order to improve her chances at partnership she
should ‘“walk more femininely, talk more femininely, dress more femininely, wear make-up,
have her hair styled, and wear jewelry.’” Id. at 234, 235. This Court found these actions to
constitute sex discrimination, because "[i]n the . . . context of sex stereotyping, an employer who
acts on the basis of a belief that a woman cannot be aggressive, or that she must not be, has acted
on the basis of gender." Id. at 250. The district court erroneously limits Price Waterhouse appli-
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cation to only biological females, because this Court stated Title VII’s proscription of “sex”
includes the "entire spectrum of disparate treatment of men and women resulting from sex
stereotypes." Id. (quoting City of Los Angeles Dep't of Water & Power v. Manhart, 435 U.S.
702, 707 n.13 (1978) (internal citation omitted)). These protections were extended to transgender
individuals in Schwenk v. Hartford. 204 F.3d 1187 (9th Cir. 2000) (court examines definition of
“sex” under Title VII, finding it encompasses both biological sex and gender). Schwenk noted
that Price Waterhouse “held that Title VII barred not just discrimination based on the fact that
Hopkins was a woman, but also discrimination based on the fact that she failed ‘to act like a
woman’-that is to conform to socially-constructed gender expectations." Id. at 1202; 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. Women & L. 133, 202 (2000), http://scholarship.
law.wm.edu/wmjowl/vol7/iss1/6. Therefore, it is clear today that when an employer treats an
transgender employee unfavorably because of his or her failure to conform to sex stereotypes
then the employer has discriminated under Title VII.
1. Rite was unlawfully discriminated against by Beetz for failing to conform
to sex stereotypes.
Beetz unlawfully discriminated against Rite when it did not promote her to Executive
Distributor and thereafter transferred her to the role of graphic designer because she did not
comply with society’s traditional expectations of male and female roles. When Young identified
Rite as one of the top two contenders for a promotion to Executive Distributor, Rite had already
been through almost a year of homorone therapy. R. at 6. In her Janaury 2014 interview for the
new position, Rite informed Young of her intent to transition and desire to be referred to as
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“Erika.” After the interview, Rite began wearing female professional attire to work. R. at 7. The
following month, Young chose a less qualified candidate, O’Shay Jackson, for the promotion,
and one week later, Young took Rite out of her position as Lead Sales Consultant and moved her
to a department with “less public visability.” R. at 7-8.
The District Court erroneously denied Rite’s Title VII claim and deferred to Young’s experience in making business decisions. R. at 14. Yet, Beetz presented minimal evidence as to
why Jackson was “best-suited to sustain the brand of [Young’s] company.” R. at 14. In fact, Rite
had an overall rating of 4.1 on her Employee Performance Review in April 2013; whereas,
Jackson only scored a 3.5 with a comment detailing a heated argument Jackson got into with a
co-worker. R. at 31-32. The Thirteenth Court accurately held that while they were not in a
position to make business decisions for Beetz, they do “possess the authority to protect [Rite]
from discrimination…” R. at 27.
2. Beetz improperly took into consideration Rite’s gender non-conformity
when making employment related decisions.
Young’s denial of promotion and subsequent transfer were a direct result of Rite’s
presentation as female while Young considered Rite as male. Young took great pride in Beetz’s
image; as the Thirteenth Circuit noted, “[i]t is reasonable to infer form the factual allegations that
Rite’s more feminine appearance did not align with Young’s traditional views of gender.” R. at
26. Young’s strong disapproval of Rite’s transitioning appearance was demonstrated by his
choice to move Rite from a client-facing sales role that she excelled in to a “less public[ly]
visib[le]” graphic design position for which she had no formal training. R. at 8. Beetz has
provided no facts to justify its decision to transfer Rite to another department other than Young’s
desire to limit Rite’s face-to-face interaction with employees and investors. R. at 8.
Young’s disapproval of Rite is unlawful and rooted in the misconception of how males
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should present themselves in the workplace. Since Price Waterhouse, federal courts have consistently held that “employers who discriminate against men because they do wear dresses and
makeup, or otherwise act femininely, are also engaging in sex discrimination, because the
discrimination would not occur but for the victim’s sex.” Smith v. City of Salem, 378 F.3d 566,
574 (6th Cir. 2004) (holding discrimination against an employee for gender-nonconforming
behavior violates Title VII regardless of the cause of the behavior); See EEOC v. RG & GR
Harris Funeral Homes, 2015 LEXIS 52016 (E.D. Mich. 2015) (denying motion to dismiss
allowing terminated employee to allege discrimination as a result of not conforming to employer’s sex-or gender-based preferences, expectations, or stereotypes); Higgins v. New Balance
Athletic Shoe, Inc., 194 F.3d 252, 261 n.4 (1st Cir. 1999) (men may also allege discrimination as
a result of not meeting stereotypical expectations of masculinity); Nichols v. Azteca Rest.
Enters., Inc., 256 F.3d 864 (9th Cir. 2001) (claim upheld where male plaintiff was mocked for
having alleged feminine qualities); Lopez v. River Oaks Imaging & Diagnostic Group, Inc., 542
F. Supp. 2d 653 (S.D. Tex. 2008) (court allowed theory that prospective employee suffered a
rescinded offer as a result of her alleged “misrepresentation” of a female). Therefore, Rite’s
denial of promotion and subsequent transfer to another department are adverse employment
actions resulting from unlawful discrimination on the basis of gender nonconformity.
B. Under Title VII, discrimination based on a person’s gender identity is also
discrimination because of sex.
Title VII’s proscription of “sex” is broad enough to encompass sex and gender. As such,
discrimination on the basis of an individual’s gender identity, including transgender, falls squarely within the meaning of “because of sex.” This understanding is supported by legislative intent,
a plain text reading of Title VII, common law, and the Equal Employment Opportunity Commis-
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sion’s understanding of the statute. Therefore, the current interpretation and practice of prohibiting sex discrimination under Title VII includes the protection of transgender individuals.
1. The legislative intent behind Title VII’s definition of “sex” is broad
enough to encompass a prohibition of discrimination against transgender
indvidiuals.
Title VII of the Civil Rights Act of 1964 was intended to eliminate injustices arising out
of an employer’s treatment of employees due to their membership in a certain class. Price
Waterhouse, 490 U.S. at 239. By passing Title VII, Congress made the “momentous announcement that sex…[is] not relevant to the selection, evaluation, or compensation of employees.” Id.
The District Court expresses concern over sex discrimination’s late inclusion in Title VII’s and
asserts that as a result of its late addition, congress intended to strictly limit “sex” to mean
biological sex. R. at 12. However, this “popular misreading of the legislative history of sex
discrimination…has hampered the development of sexual discrimination protections.” Robert C.
Bird, More an a Congressional Joke: A Fresh Look at the Legislative History of Sex Discrimination of the 1964 Civil Rights Act, 3 Wm. & Mary J. Women & L. 137, 161 (1997), http://
scholarship.law.wm.edu/wmjowl/vol3/iss1/6. Further examination of the history behind the sex
discrimination provision reveals a story of lobbyist relentlessly fighting to add “sex” as an effort
towards “equality in the workplace…” Id. The spirit behind Title VII captures the necessity of
examining the meaning of “sex” under current interpretations, which includes sex discrimination
against transgendered individuals.
Congress’s desire to prevent employers from taking gender into account when “making
employment decisions appears on the face of the statute.” Price Waterhouse, 490 U.S. at 239.
The District Court claims transgender individuals are not protected by Title VII, because Con-
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gress has since introduced failed bills that explicitly protect transgender individuals from employment discrimination. R. at 13. However, as this Court stated:
[S]ubsequent legislative history is a hazardous basis for inferring the intent of an
earlier Congress. It is a particularly dangerous ground on which to rest an interpretation of a prior statute when it concerns, as it does here, a proposal that does
not become law. Congressional inaction lacks persuasive significance because
several equally tenable inferences may be drawn from such inaction, including the
inference that the existing legislation already incorporated the offered change.
See Schroer v. Billington, 577 F. Supp. 2d 293 (D.D.C. 2008) (citing Pension Ben Guar. Corp. v.
LTV Corp., 496 U.S. 633, 650 (internal citations and quotation marks omitted). As such, this
Court should interpret “sex” under the current rationale put forth by the federal courts and
EEOC.
2. Courts have begun to recognize under Title VII discrimination on the basis of gender identity is discrimination on the basis of sex.
Since Ulane, Holloway, and Etsitty, this Court has “applied Title VII in ways Congress
could not have contemplated.” Schroer, 577 F. 2upp 2d at 307. Some federal courts have explicitly held that a prohibition of gender discrimination is within the meaning of “sex” under Title
VII. In Schwenk v. Hartford, the Ninth Circuit discussed the meaning of gender in the prison
context by assessing its historical interpretation of Title VII. 204 F.3d 1187, 1201 (9th Cir.
2000). The court in Schwenk determined that after Price Waterhouse, "sex" under Title VII
includes both the biological definition of sex as well as gender. Id. at 1202. Further, the court
explicitly held that the judicial approach taken in cases like Holloway has been overruled by
Price Waterhouse. Id. at 1201; Frye, supra at 203.
Further, in Schroer, a transgender female job offer was rescinded after notifying the employer of her gender dysphonia diagnosis and intent to transition. 577 F. 2upp 2d at 296. The
employer expressed concerns over whether Schroer would be a “good fit.” Id. at 299. The court
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held that the employer’s refusal to hire Schroer after learning that “she planned to change her
anatomical sex by undergoing sex reassignment surgery was literally discrimination “‘because
of. . . sex.’” Id. at 308; See also Oncale v. Sundower, 523 U.S. 75 (1998) (Justice Scalia found
that the court must go beyond “principal evil” of Title VII, thus including “reasonably comparable evils”); Glenn v. Brumby, 663 F. 3d 1312 (11th Cir. 2011) (finding “gender” encompasses
transgender individuals for purposes of Fourteenth Amendment protections); Lewis v. High
Point Reg'l Health Sys., 79 F. Supp. 3d 588, 589 (E.D.N.C. 2015) (holding Title VII’s sex
discrimination prohibits discrimination related to transgender status). As the most recent cases
examining Title VII demonstrate, discrimination on the basis of both biological sex and gender,
including transgender individuals, is unlawful per Title VII.
3. This Court should defer to the Equal Employment Opportunity
Commission’s expertise in analyzing discrimination claims.
The EEOC is the sole agency with the responsibility of enforcing Title VII. About EEOC,
U.S. Equal Employment Opportunity Commission, http://www.eeoc.gov/eeoc/index.cfm (last
visited Feb. 12, 2016). As such, this Court should take into consideration to their expertise. R. at
25. The EEOC has recently taken a strong stance on the broad interpretation of sex discrimination. In 2012, the EEOC shifted its position on the boundaries of unlawful sex discrimination.
Macy, 2012 WL 1435995. In Macy, a transgender female police detective was not hired after
informing an agency of her plans to transition. Id. at *1. The EEOC determined gender identity
fell under the prohibition of sex discrimination, and the employer’s decision was discriminatory.
Id. at *10-11. Following this determination, the EEOC has affirmatively stated in their employer
training guides that “[d]iscrimination against an individual because that person is transgender is,
by definition, discrimination based on sex, and violates Title VII.” Gender Stereotyping, U.S.
Equal Employment Opportunity Commission (Aug. 2013),
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http://www.eeoc.gov/eeoc/publications/upload/Gender-Stereotyping-LGBT-brochure-OLC.pdf.
As the exclusive agency with enforcement power over Title VII, this Court should defer to the
EEOC’s interpretation and guidance in finding that discrimination based on a person’s gender
identity is sex discrimination prohibited by Title VII.
C. Rite’s termination resulting from the exhaustion of her paid leave was pretext for
intentional discrimination on the basis of sex.
Once a plaintiff fulfills their burden of proving the McDonnell factors previously discussed, the defendant has the opportunity to present legitimate nondiscriminatory reasons for the
adverse employment action. Burdine, 450 U.S. at 253-55 (holding in a gender discrimination
case the defendant employer has the burden of persuasion to create a genuine issue as to whether
the employer intended to discriminate). Neither the plaintiff’s task of establishing a prima facie
case, nor the defendant’s burden to present a nondiscriminatory explanation is onerous. Id. at
253. However, the ultimate burden falls back on the plaintiff to prove by preponderance of
evidence that the reasons put forth by defendant are merely pretext for discrimination. Hicks, 509
U.S. at 506-07. If pretext is proven, then the plaintiff may prevail on his or her discrimination
claim under Title VII. Connecticut v. Teal, 457 U.S. 440, 447 (1982).
Because Beetz failed to provide legitimate nondiscriminatory reasons for not promoting or
transferring Rite, Rite maintains the burden of persuasion in proving the McDonnell factors.
However, in addition to not being promoted and then transferred to a different role, Rite suffered
the ultimate adverse employment action when she was terminated from Beetz on February 27,
2015 after undergoing gender reassignment surgery. R. at 9. Rite then filed a charge with the
EEOC on March 13, 2015, which is well within the 180 day statute of limitations required by the
EEOC. R. at 15; Time Limits for Filing a Charge, U.S. Equal Employment Opportunity Commission, http://www.eeoc.gov/employees/timeliness.cfm (last visited Feb. 12, 2016). Rite was
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allegedly terminated because of her unexcused continued absence. R. at 9. However, Rite’s
denial of her Family Medical Leave Act request was delayed and unwarranted, and Rite is able
to show through a preponderance of evidence that her alleged unexcused absences were not in
fact the real reason for her termination. Rather, Beetz terminated Rite because of her failure to
conform to its understanding of how a man should behave, based on traditional gender stereotypes.
II. RITE WAS ENTITLED TO TAKE UNPAID MEDICAL LEAVE UNDER THE
FAMILY MEDICAL LEAVE ACT BECAUSE GENDER DYSPHORIA IS A
SERIOUS HEALTH CONDITION.
The Family and Medical Leave Act (“FMLA” or “the Act”) provides employees with substantive statutory protections, and makes it “unlawful for any employer to interfere with, restrain,
or deny the exercise of or the attempt to exercise, any right provided.” 29 U.S.C. § 2615(a)(1)
(1993); King v. Preferred Technical Group, 166 F.3d 887, 891 (7th Cir. 1999) (court reversed
trial court's grant of summary judgment to defendant employer because there was a genuine issue
of material fact as to whether defendant wrongfully terminated plaintiff in violation of the
Family and Medical Leave Act); Schmutte v. Resort Condos. Int'l, LLC, 463 F. Supp. 2d 891,
906 (S.D. Ind. 2006) (on motion for summary judgment court held that a reasonable jury could
find plaintiff’s substantive rights under FMLA were violated, and plaintiff was entitled to leave
under FMLA because chronic depression and anxiety was a serious health condition). Under the
Act, Rite was entitled to unpaid leave for a period of up to twelve work weeks in for a serious
health condition as defined by the Act. Schmutte, 463 F. Supp. 2d at 906. Beetz deprived Rite of
her substantive guarantee to leave under the FMLA. In order to succeed on her substantive claim
that she is entitled to leave under the FMLA and that Beetz interfered with this right, Rite must
show that (1) she is an eligible employee under the FMLA; (2) Beetz is an employer under the
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FMLA; (3) she was entitled to take the FMLA leave at issue; (4) she gave adequate notice of her
intention to take the leave; and (5) Beetz improperly denied her the leave requested. See Jadwin
v. Cty. of Kern, 610 F. Supp. 2d 1129, 1169 (E.D. Cal. 2009); Schmutte, 463 F. Supp. 2d at 907.
Elements one and two are not in dispute here. R. at 15. Under the Act, an employee must
provide his or her employer with 30 days written notice of a foreseeable need for leave. 29 C.F.
R. § 825.302 (2013). Rite satisfied the fourth element, as she applied in writing for FMLA leave
on November 1, 2014. R. at 8. Rite was not scheduled to have gender reassignment surgery until
January 30, 2015, which was 90 days after she notified Beetz of her need for leave. R. at 9. The
remaining elements three and five are at issue in this case. Rite satisfies the third element and is
entitled to leave under the FMLA because gender dysphoria constitutes a serious health condition as defined by the FMLA. Specifically, Rite’s gender dysphoria was exacerbated by anxiety
and depression. R. at 5. As for the fifth element, Beetz improperly denied Rite her substantive
right to leave under the FMLA when she was denied leave on February 1, 2015, three months
after Rite filed her initial request. R. at 9.
Further, under the regulations, employers are obligated to communicate with employees
regarding their rights under the FMLA. 29 C.F.R. § 825.301(b)(1) (2013). The regulations
require that when an employee requests leave, the employer must provide the employee with
written notice explaining the specific expectations and obligations of the employee. Id. Critically, the employer's written notice must be made within a reasonable time after notice of the need
for leave is given by the employee. 29 C.F.R. § 825.300(c) (2013). Rite submitted her request for
leave, as well as the required medical certification by November 8, 2014. R. at 8. Despite her
continued efforts to find out more about her obligations and status of her request, Rite did not
hear anything from Beetz until her denial of leave nearly three months later on February 1, 2015.
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R. at 8-9. This failure to comply with FMLA regulations entitles Rite to appropriate equitable
relief. 29 C.F.R. § 825.300(e) (2013). For the reasons stated above, the Court should affirm the
Thirteenth Circuit’s decision that gender dysphoria qualifies as a serious health condition for
which gender reassignment surgery may be medically necessary under the FMLA.
A. Under the FMLA, gender dysphoria is considered a “serious health condition” in
both government and private employment.
As the Thirteenth Circuit recognized in its decision to reverse the District Court’s dismissal of Rite’s claims, several federal courts have recognized depression and anxiety—both of
which Rite suffered from—as serious health conditions under the FMLA. Additionally, courts
have recognized gender dysphoria in the context of prisoner’s rights. These holdings provide
support for the changing standard of interpreting FMLA claims for transgendered individuals,
and as such, gender dysphoria should be considered a serious health condition under the FMLA.
The Secretary of Labor promulgated regulations to carry out the requirements of the
FMLA, defining “serious health condition,” as well as the terms included within the definition of
what constitutes a serious health condition. See 29 U.S.C. § 2654 (1993). The regulation entitled
“Serious health condition,” provides that, “‘[f]or purposes of FMLA, serious health condition
entitling an employee to FMLA leave means an illness, injury, impairment or physical or mental
condition that involves inpatient care as defined in § 825.114 or continuing treatment by a health
care provider as defined in § 825.115.’” Bonkowski v. Oberg Indus., 787 F.3d 190, 196-197 (3d
Cir. 2015) (quoting 29 C.F.R. § 825.113(a) (2013)). Under 29 C.F.R. § 825.114 (2013),
“[i]npatient care means an overnight stay in a hospital, hospice, or residential medical care
facility, including any period of incapacity as defined in § 825.113(b), or any subsequent treatment in connection with such inpatient care.” Furthermore, in the separate “Definitions” section,
“[s]erious health condition means an illness, injury, impairment or physical or mental condition
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that involves inpatient care as defined in § 825.114 or continuing treatment by a health care
provider as defined in § 825.115.” 29 C.F.R. § 825.102 (2015); Bonkowski, 787 F.3d at 196-197.
However, because the Department of Labor (“DOL”) has not explicitly defined what
constitutes an “overnight stay,” common law dictates what is meant by an overnight stay with
respect to a serious health condition covered by the FMLA. Id. at 199. While deference is given
to the Secretary, courts may examine whether a regulation is “arbitrary, capricious, or manifestly
contrary to the statute,” and determine whether the Secretary used proper authority when originating the regulations. Chevron U.S.A. v. Nat’l Res. Def. Council, Inc., 467 U.S. 837, 844
(1984). In construing a statute, courts look to the plain text, as well as the legislative history and
interpretive agencies to aid in determining Congress’s intent. Id.; Bonkowski, 787 F.3d at 197200. The DOL’s history of promulgating regulations for the FMLA is long and complicated. Id.
at 197. Since the Secretary’s first regulations in 1993, numerous interim regulations have been
issued, as well as revisions to the sections concerning what constitutes a serious health condition.
See Bonkowski, 787 F.3d at 197-199 (citing 58 Fed. Reg. 31794 (1993); 60 Fed. Reg. 2180).
The definition of inpatient care is fairly direct, and neither the DOL nor commentators
have devoted much scrutiny to the statutory interpretation of “inpatient care”: “[w]hile the
meaning of inpatient care is evident (i.e., an overnight stay in the hospital, etc.), the concept of
continuing treatment presents more difficult issues." 60 Fed. Reg. 2192 (1995); See also
Bonkowski, 787 F.3d at 198. The Third Circuit in Bonkowski examined the DOL’s regulations
and interpreted the FMLA under the above framework, stating: “[w]e believe that "an overnight
stay" means a stay in a hospital, hospice, or residential medical care facility for a substantial
period of time from one calendar day to the next calendar day as measured by the individual's
time of admission and his or her time of discharge. Id; See also Estate of Landers v. Leavitt, 545
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F.3d 98 (2d Cir. 2009) (holding because the DOL does not provide a definition of the term
“inpatient,” the Centers for Medicare and Medicaid were granted Chevron deference to interpret
the FMLA and set its own rule three-day hospital stay rule for employees to qualify for leave).
Importantly, the definition of serious health condition articulates that such health condition
involves either inpatient care or continued treatment by a health care provider (emphasis added).
29 C.F.R. § 825.114 (2013). Because Rite received inpatient care at a hospital, following her
surgery with Dr. Dreigh, it is not necessary to analyze the regulations prescribing “continued
treatment by a health care provider.”
1. Rite suffered from both depression and anxiety, which are recognized as
serious health conditions under the FMLA.
Courts have recognized that depression and anxiety constitute serious health conditions
covered by the FMLA. See Chandler v. Specialty Tires of Am. (tenn.), 283 F.3d 818, 825 (6th
Cir. 2002) (“[i]t is apparent that hospitalization for severe depression is covered by the statute);
Tully-Boone v. N. Shore-Long Island Jewish Hosp. Sys., 588 F. Supp. 2d 419, 423-24 (E.D.N.Y.
2008) (“[c]ourts have recognized that depression is a serious health condition within the meaning
of the FMLA”); See also Spangler v. Federal Home Loan Bank of Des Moines, 278 F.3d 847,
852 (8th Cir. 2002) (recognizing that depression is a “serious health condition” within the
meaning of the FMLA); Collins v. NTN-Bower Corp., 272 F.3d 1006 (7th Cir. 2001) (holding
that depression meets the statutory description “serious health condition” under the FMLA).
Along with her gender dysphoria, Rite suffered from severe depression and anxiety, which
qualify as serious health conditions under the FMLA. These recognized health conditions
accompanying gender dysphoria should entitle Rite to medical leave under the FMLA. Although
the Court has yet to address whether gender dysphoria qualifies as a serious health condition
under the FMLA, other courts have found that it does constitute a serious health condition in
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other contexts of the law, by holding that gender reassignment surgery was medically necessary
for purposes of the Eight Amendment. See O'Donnabhain v. Comm'r, 134 T.C. 34, 70 (2010);
Norsworthy v. Beard, 74 F. Supp. 3d 1100, 1104 (N.D. Cal. 2014).
2. Federal Courts of Appeals have recognized gender dysphoria as a serious
health condition in the legal context of Eighth Amendment Rights for
prisoners.
In recent years, courts have recognized that transgendered individuals often face a serious
medical need for sex reassignment surgery in order to treat their gender dysphoria. In Norsworthy, the plaintiff was an inmate in a California correctional facility. Norsworthy, 74 F. Supp. 3d
at 1104. Norsworthy was a transsexual woman with gender dysphoria and “significant distress
resulting from the incongruence between her male physical features and her female gender
identity since at least adolescence.” Id. at 1104. The court recognized that, “the final step of
Norsworthy's treatment is sex reassignment surgery, which would bring her primary and secondary sex characteristics into conformity with her female gender identity and therefore treat the
severe mental anguish she experiences as a result of her gender dysphoria.” Id. at 1104. Norsworthy’s psychologist continually recommended sex reassignment surgery as medically necessary. Id. The court held that the plaintiff sufficiently alleged deliberate indifference to her serious
medical needs “by ignoring a treating psychologist's opinion that sex reassignment surgery was
medically necessary.” Id. at 1103.
The First Circuit has also addressed gender dysphoria in the prison context. See Kosilek
v. Spencer, 889 F. Supp. 2d 190 (D. Mass. 2012); See also Battista v. Clarke, 645 F.3d 449 (1st
Cir. 2011) (holding plaintiff was entitled to hormone therapy to treat her gender dysphoria, and
that the defendants demonstrated deliberate indifference to the recommended and medically
necessary therapy); Fields v. Smith, 653 F.3d 550, 552 (7th Cir. 2011) (invalidating a state
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statute that banned gender reassignment surgery for inmates because it such treatment may be
medically necessary and denial would constitute a violation of the Eight Amendment). In
Kosilek II1, the District Court for the District of Massachusetts determined there was “‘a clear
consensus that GID constitutes a medical condition of sufficient seriousness that it triggers the
Eighth Amendment requirement that prison officials not ignore or disregard it.’” Kosilek, 889 F.
Supp. 2d at 230 (quoting O'Donnabhain, 134 T.C. at 63). Kosilek was a transsexual inmate
serving a life sentence. Kosilek was seeking the treatment prescribed for him by the Department
of Correction’s doctors “as the only form of adequate medical care for his condition.” Kosilek,
889 F. Supp. 2d at 196. The court held that Kosilek demonstrated that she suffered from gender
dysphoria, sex reassignment surgery was medically necessary, officials showed deliberate
indifference to the plaintiff’s medical needs, and that the plaintiff was entitled to the treatment
sought. Id. at 250-251.
The court in Kosilek I relied on the opinion in O’Donnabhain, which stated, “seven of the
U.S. Courts of Appeals that have considered the question have concluded that severe GID or
transexualism constitutes a ‘serious medical need’ for purposes of the Eighth Amendment.”
O’Donnabhain, 134 T.C. at 61.2 In O’Donnabhain, the court found the evidence amply supported the conclusions that petitioner suffered from severe gender dysphoria3, gender dysphoria was
1 In Kosilek I, the District Court found that the inmate plaintiff’s disorder was severe because the disorder caused
him intense and enduring mental anguish, and that the inmate had not been offered adequate treatment. However,
the court ultimately held that the inmate “failed to prove that the denial of adequate care was a result of deliberate
indifference or that the Commissioner would be deliberately indifferent to the inmate's serious medical need in the
future.” Kosilek v. Maloney, 221 F. Supp. 2d 156, 158 (D. Mass. 2002).
2 The cases O’Donnabhain cites are: De'lonta v. Angelone, 330 F.3d 630, 634 (4th Cir. 2003); Allard v. Gomez, 9
Fed. Appx. 793, 794 (9th Cir. 2001); Cuoco v. Moritsugu, 222 F.3d 99, 106 (2d Cir. 2000); Brown v. Zavaras, 63
F.3d 967, 970 (10th Cir. 1995); Phillips v. Mich. Dept. of Corr., 932 F.2d 969 (6th Cir. 1991), aff’g. 731 F. Supp.
792 (W.D. Mich. 1990); White v. Farrier, 849 F.2d 322, 325-27 (8th Cir. 1988); Meriwether v. Faulkner, 821 F.2d
408, 411-13 (7th Cir. 1987).
3 For consistency and accuracy, when referencing cases decided prior to the American Psychiatric Association’s
revision of the term “gender identity disorder” to “gender dysphoria,” the brief will use the term “gender dysphoria.”
In the fifth edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-5), the American Psychiatric
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a “well-recognized and serious mental disorder, and that hormone therapy and sex reassignment
surgery are considered appropriate and effective treatments.” Id. at 76. Having found hormone
therapy and sex reassignment surgery were medically necessary to treat gender dysphoria, the
court held that the procedures fell within the statute’s definition of “medical care,” and thus, the
plaintiff could deduct those costs from her income tax. Id. at 93-94. These cases clearly demonstrate the growing recognition of the severity of gender dysphoria, and the medical necessity of
sex reassignment and hormone therapy as treatment. While the cases described above are in the
context of civil commitments, they serve as strong persuasive authority for this Court when
examining gender dysphoria as a qualifying serious health condition under the FMLA.
B. Rite’s gender reassignment surgery was medically necessary to treat her gender
dysphoria.
After years of suffering from depression and anxiety, Rite sought treatment from psychiatrist Dr. Gee. R. at 4. After several weeks of psychotherapy treatment, Dr. Gee diagnosed Rite
with gender dysphoria. R. at 4. The petitioner does not deny that Rite suffered from and was
diagnosed with gender dysphoria. Instead, petitioner simply argues that Rite’s gender dysphoria
was not a serious health condition but rather elective surgery. This argument is contrary to
federal court decisions, the World Professional Association for Transgender Health (“WPATH”),
and the U.S. Office of Personnel Management (“OPM”).
As stated in O’Donnabhain, the evidence presented by the plaintiff and supporting case
law demonstrate that hormone therapy and sex reassignment surgery are undertaken by those
suffering from gender dysphoria “in an effort to alleviate the distress and suffering occasioned by
[gender dysphoria], and that the procedures have positive results in this regard in the opinion of
Association updated the diagnosis “gender identity disorder” to “gender dysphoria.” American Psychiatric Association DSM-5 Development, Gender Dysphoria Fact Sheet, May 16, 2013,
http://www.dsm5.org/documents/gender%20dysphoria%20fact%20sheet.pdf. This diagnosis is a revision of DSM-
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many in the psychiatric profession.” O’Donnabhain, 134 T.C. at 76. With Dr. Gee’s guidance,
Rite researched her options for treating her gender dysphoria for a year, and thought comprehensibly about transitioning.4 R. at 5. Rite carefully considered the implications and risks of all
options with Dr. Gee, and ultimately she decided that gender reassignment surgery as part of her
transition. R. at 5. The intent behind gender reassignment surgery was Rite’s desire to alleviate
her depression and anxiety, and overall discomfort within her own skin. Although her frequent
visits with Dr. Gee improved her mental health, gender reassignment surgery was far from
cosmetic. Indeed, it was medically necessary to fully treat her gender dysphoria.
On June 13, 2014, the OPM distributed a letter to all insurance companies participating in
the Federal Employee Health Benefits Program (“FEHB”), providing guidance on carriers
regarding treatment for individuals with gender dysphoria. The letter stated:
There is an evolving professional consensus that treatment is considered medically necessary for certain individuals who meet established Diagnostic and Statistical Manual (DSM) criteria for a diagnosis of Gender Identity Disorder/Gender
Dysphoria. Accordingly, OPM is removing the requirement that FEHB brochures
exclude “services, drugs, or supplies related to sex transformations” in Section 6
of the FEHB plan brochure effective with the 2015 plan year.
Letter from John O’Brien, Director, U.S. Office of Personnel Management Healthcare and
Insurance, to All FEHB Carriers (June 13, 2014), https://www.opm.gov/healthcareinsurance/healthcare/carriers/2014/2014-17.pdf. This letter gave carriers the option to remove or
maintain the general exclusion language for the 2015 plan year. However, one year later, on June
23, 2015, the OPM issued yet another letter to FEHB carriers, mandating that no FEHB carrier
may exclude services, drugs or supplies related to gender transition or “sex transformations.”
4’s criteria for gender identity disorder and is intended to better characterize the experiences of affected children,
adolescents, and adults. When DSM-5 is completed, Gender dysphoria will have its own chapter in DSM-5. Id.
4 Transitioning is the complex process of altering one’s birth sex, a process that usually occurs over a long period of
time and varies from person-to-person. GLAAD MEDIA REFERENCE GUIDE – TRANSGENDER ISSUES,
http://www.glaad.org/reference/transgender (last visited February 14, 2016).
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The letter “clarifies OPM’s earlier guidance recognizing the evolving professional consensus that
treatment may be medically necessary to address a diagnosis of gender dysphoria.” Letter from
John O’Brien, Director, U.S. Office of Personnel Management Healthcare and Insurance, to All
FEHB Carriers (June 23, 2015), https://www.opm.gov/healthcare-insurance/healthcare/carrie
rs/2015/2015-12.pdf. The OPM’s removal of exclusionary language in insurance plans is symbolic of the federal government’s attitude towards gender dysphoria, and the viable necessity of
sex reassignment surgery as treatment.
Moreover, in 2012, The World Professional Association for Transgender Health
(“WPATH”) published the seventh version of Standards of Care for the Health of Transsexual,
Transgender, and Gender-Nonconforming People. Eli Coleman et. al, Standards of Care for the
Health of Transsexual, Transgender, and Gender-Nonconforming People, The World Professional Association for Transgender Health (2012), http://www.wpath.org/uploaded_files/140
/files/IJT%20SOC,%20V7.pdf. In the Standards of Care (“SOC”), WPATH discusses at length
the fact that sex reassignment surgery is effective and medically necessary. Coleman, supra at
199. As the SOC explains, for those individuals such as Rite, who are unable to find comfort
with their gender identity, role, or expression without surgery, “relief from gender dysphoria
cannot be achieved without modification of their primary and/or secondary sex characteristics to
establish greater congruence with their gender identity.” Id. Contrary to what Beetz argues,
“[g]enital and breast/chest surgical treatments for gender dysphoria are not merely another set of
elective procedures.” Id.
The SOC suggest the following criteria be met, under the supervision of qualified medical professionals, before gender reassignment surgery is completed: 1) well documented gender
dysphoria, 2) the ability of the individual to make an informed decision, 3) 12 consecutive
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months of hormone therapy and living as the individual’s identity. Id. at 199, 202. Rite met all of
these suggested criteria. She was diagnosed with gender dysphoria in December 2012, began
hormone therapy and identifying as transgender in January 1, 2013, and did not have the reassignment surgery until January 30, 2014. R. at 4-8. The SOC further explains “postoperative care
and follow-up after surgical treatments for gender dysphoria are associated with good surgical
and psychosocial outcomes.” Id. at 205. Rite was told after her surgery that she must remain in
bed for at least a week, and restrict her physical activity for a couple of weeks after that. R. at 9.
Rite’s diagnosis with gender dysphoria and treatment with gender reassignment surgery
should be treated as a serious health condition under the FMLA, entitling Rite to her substantive
statutory right to unpaid medical leave. This conclusion is supported by case law, as well as
social, medical, and political understanding of the need to eliminate perpetual stereotypes of the
transgendered community, and demonstrate the medical necessity of sex reassignment surgery to
treat gender dysphoria. For the reasons stated above, this Court should affirm the Court of
Appeals decision finding that gender dysphoria should be recognized as a serious health condition justifying unpaid medical leave under the Family Medical Leave Act.
CONCLUSION
For the foregoing reasons, Respondent respectfully requests that this Court AFFIRM the
United States Court of Appeals for the Thirteenth Circuit ruling.
Dated: February 16, 2016
Respectfully submitted,
Team No. 10
________________________________
ATTORNEYS FOR RESPONDENT
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