N . 16-24

NO. 16-24
IN THE
SUPREME COURT OF THE UNITED STATES
SPRING TERM, 2016
BEETZ, INC.,
Petitioner,
v.
ERIKA RITE,
Respondent.
ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE THIRTEENTH CIRCUIT
BRIEF FOR RESPONDENT
TEAM 18
Attorneys for Respondent
February 16, 2016
New York Law School Moot Court Association
40th Annual Robert F. Wagner National Labor & Employment Law
Moot Court Competition
Team #18
QUESTIONS PRESENTED
I.
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.
II.
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 jobprotected leave to undergo gender reassignment surgery.
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TABLE OF CONTENTS
QUESTIONS PRESENTED ......................................................................................................... I
TABLE OF AUTHORITIES ..................................................................................................... IV
OPINIONS BELOW..................................................................................................................... 1
STATEMENT OF THE CASE .................................................................................................... 1
STATUTORY PROVISIONS ...................................................................................................... 7
SUMMARY OF THE ARGUMENT .......................................................................................... 8
STANDARD OF REVIEW ........................................................................................................ 10
ARGUMENTS AND AUTHORITIES...................................................................................... 10
I. MS. RITE, A TRANSGENDER WOMAN, STATED A LAWFUL SEX DISCRIMINATION
CLAIM UNDER TITLE VII OF THE 1964 CIVIL RIGHTS ACT AND IS ENTITLED TO
COMPENSATORY AND PUNITIVE DAMAGES BECAUSE HER EMPLOYER
DISCRIMINATED AGAINST HER ON THE BASIS OF SEX. ............................................. 10
A. Despite being the best candidate for the position, Ms. Rite was not promoted because
her employer impermissibly discriminated against her on the basis of sex. ........................ 11
1. Discrimination on the basis of sex can be based on gender stereotypes or per se sex
discrimination. .................................................................................................................. 12
a. Ms. Rite suffered unlawful employment discrimination based on gender
stereotypes..................................................................................................................... 12
b. Ms. Rite suffered per se employment discrimination based on sex because she is a
transgender female. ....................................................................................................... 14
2. The one and only circumstance in which an employer can consider gender when
making an employment decision is inapplicable to Ms. Rite and this case. ..................... 18
3. Ms. Rite suffered an adverse employment action by her employer when the
company failed to promote her and instead transferred her to a different department. .... 18
4. Ms. Rite was treated differently solely because of her gender. ................................ 19
B. Because Ms. Rite has a lawful claim of employment discrimination on the basis of sex,
she is entitled to compensatory and punitive damages as provided by an addition to Title
VII of the Civil Rights Act. .................................................................................................... 19
1. Ms. Rite is entitled to compensatory damages as provided by statute...................... 19
2. Ms. Rite is entitled to punitive damages because her employer engaged in a
discriminatory practice with malice or, in the alternative, reckless indifference, to her
federally protected rights. ................................................................................................. 20
II. MS. RITE STATED A VIABLE CLAIM FOR UNPAID, JOB-PROTECTED LEAVE TO
UNDERGO GENDER REASSIGNMENT SURGERY UNDER THE FAMILY MEDICAL
LEAVE ACT OF 1993. ............................................................................................................. 20
A. Gender Dysphoria May Be Considered a Serious Health Condition under the Plain
Meaning of the Family Medical Leave Act of 1993. ............................................................. 21
1. Gender Dysphoria Is a Disorder Listed by the World Health Organization’s
International Classification of Diseases. ........................................................................... 21
2. Gender Dysphoria Treatment May Involve Inpatient Care in a Hospital. ................ 22
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3. Gender Dysphoria May be a Mental Condition that Involves Continuing Treatment
by a Healthcare Provider ................................................................................................... 23
4. Gender Dysphoria May Be a Chronic Serious Health Condition as Defined by §
825.115(c) ......................................................................................................................... 24
5. Gender Dysphoria Is a Serious Medical Condition in the Eight Amendment Medical
Care Context ..................................................................................................................... 26
B. The FMLA’s Preambles Support a Finding that Congress did not Intend to
Categorically Exclude Transgender Individuals from Coverage under the FMLA ............. 27
C. Refusing to Allow Transgender Individuals Rights Under the FMLA Would Perpetuate
Employment Discrimination and Economic Insecurity Among the Transgender Community .
....................................................................................................................................... 28
1. The Federal Government Demonstrated a Shift Toward Eliminating All Forms of
Discrimination Against Transgender Individuals When it Mandated Transition-Related
Coverage for FEHBP Participants .................................................................................... 29
2. Denying FMLA Job-Protected Leave to Transgender Individuals has Reaching
Effects ............................................................................................................................... 30
CONCLUSION ........................................................................................................................... 31
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TABLE OF AUTHORITIES
United States Supreme Court Cases:
Caminetti v. United States, 242 U.S. 470, 485 (1919) .................................................................. 13
Gen. Elec. v. Gilbert, 425 U.S. 125 (1976)................................................................................... 16
Holy Trinity Church v. U.S., 143 U.S. 457 (1892) ....................................................................... 27
Los Angeles Dep’t of Water & Power v. Manhart, 435 U.S. 702 (1978) ..................................... 11
McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273 (1973) .................................................. 15
Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669 (1983). ..................... 15, 16
Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1988)...................................... 10, 14, 16
Pension Ben. Guar. Corp. v. LTV Corp., 496 U.S. 633 (1990) .................................................... 15
Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) ..................................................................... 11
U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711 (1983) .............................................. 9
Federal Circuit Court Cases
Atonio v. Wards Cove Packing Co., 810 F.2d 1477 (9th Cir. 1987)............................................... 9
Baylor v. Jefferson Cty. Bd. Educ., 733 F.2d 1527 (11th Cir. 1984) .............................................. 9
Caldwell v. Holland of Texas, Inc., 208 F.3d 671 (8th Cir. 2000)................................................ 21
Curry v. Oklahoma Gas & Elec. Co., 730 F.2d 598 (10th Cir. 1984) ............................................ 9
Geisler v. Folsom, 735 F.2d 991 (6th Cir. 1984) ............................................................................ 9
Gilbert v. City of Little Rock, 722 F.2d 1390 (8th Cir. 1983) ......................................................... 9
Glenn v. Brumby, 663 F.3d 1312 (11th Cir. 2011) ................................................................. 12, 28
Gutierrez v. Peters, 111 F.3d 1364, 1373 (7th Cir. 1997) ............................................................ 25
Kim v. Coppin State College, 662 F.2d 1055 (4th Cir. 1981) ......................................................... 9
Page v. U.S. Indus., Inc., 726 F.2d 1038 (5th Cir. 1984)................................................................ 9
Schroer v. Billington, 577 F. Supp. 2d 293 (D.D.C. 2008)............................................... 13, 14, 15
Schwenck v. Hartford, 204 F.3d 1187 (9th Cir. 2000).................................................................. 12
Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004) ................................................................... 12
Federal District Court Cases
Fields v. Smith, 712 F. Supp. 2d 830 (E.D. Wis. 2010) ................................................... 22, 23, 25
Glenn v. Brumby, 724 F. Supp. 2d 1284 (N.D. Ga. 2010) ............................................................ 23
Hayduk v. City of Johnstown, 580 F. Supp. 2d. 429 (W.D. Pa. 2008).................................... 21, 24
Konitzer v. Frank, 711 F. Supp. 2d 874 (E.D. Wis. 2010) ..................................................... 20, 25
Kosilek v. Maloney, 221 F. Supp. 2d 156 (D. Mass. 2002) .................................................... 21, 25
Norsworthy v. Beard, 87 F. Supp. 3d 1164 (N.D. Cal. 2015) ....................................................... 26
Phinizy v. Pharmacare, 569 F. Supp. 2d 512 (W.D. Pa. 2008) .................................................... 23
Constitutional Provisions
U.S. CONST. amend. VIII, cl. 3 ..................................................................................................... 25
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Federal Statutes
29 U.S.C. § 2601 ..................................................................................................................... 19, 26
29 U.S.C. § 2612 ....................................................................................................................... 7, 19
42 U.S.C. § 1981 ........................................................................................................................... 15
42 U.S.C. § 1981a ........................................................................................................................... 7
42 U.S.C. § 2000e ........................................................................................................... 7, 9, 10, 11
Federal Regulations
29 C.F.R. § 825.113 ...................................................................................................................... 24
29 C.F.R. § 825.114 ...................................................................................................................... 21
29 C.F.R. § 825.115 ...................................................................................................................... 23
Other Sources
Gender, BLACK’S LAW DICTIONARY (10th ed. 2014) ................................................................... 14
Fact Sheet: Gender Dysphoria, Am. Psychiatric Ass’n ............................................................... 22
Jaime M. Grant et al., Injustice at Every Turn: A Report of the National Transgender
Discrimination Survey, Nat’l Ctr. for Transgender Equity (2011) ..................................... 27, 29
Remarks of Sen. Williams, 123 CONG. REC. 7539 (1977)............................................................ 16
Serious, BLACK’S LAW DICTIONARY (10th ed. 2014). .................................................................. 20
Sex, MERRIAM-WEBSTER .............................................................................................................. 14
U.S. OFFICE OF PERS. MGMT., HEALTH CARE & INS., FEHBP LETTER NO. 2014-17, GENDER
IDENTITY DISORDER/GENDER DYSPHORIA (June 13, 2014) ...................................................... 28
U.S. OFFICE OF PERS. MGMT., HEALTH CARE & INS., FEHBP LETTER NO. 2015-12, COVERED
BENEFITS FOR GENDER TRANSITION SERVICES (June 23, 2015) ......................................... 27, 28
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OPINIONS BELOW
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) and is included in the record at pages 2–21. The
opinion of the United States Court of Appeals for the Thirteenth Circuit is reported at 575 F.3d
185 (13th Cir. 2015) and is included in the record at pages 22–30.
STATEMENT OF THE CASE
This case involves the interpretation of Title VII of the 1964 Civil Rights Act (“Title
VII”) prohibiting discrimination in employment, in part, because of sex and the Family Medical
Leave Act (“FMLA”). Respondent Erika Rite (“Ms. Rite”) sued her former employer, Beetz, Inc.
(“employer”), for sex discrimination under Title VII and for denial of her rights under the
FMLA.
Success, Despite Early Challenges. Erika Rite was born as Eric Rite. During her
adolescent years, Ms. Rite began to experience “extreme confusion” about her gender identity
because she had always identified as female but was assigned the gender “male” at birth. R. at 3.
After graduating from high school in 2002, Ms. Rite left her conservative small town in Iowa to
pursue a degree at the more socially progressive Wagner State University in Kompton, Wagner
(USA). R. at 3. Throughout this time Ms. Rite continued to represent herself as a man, however,
she felt uncomfortable identifying as a man. After obtaining her Bachelor’s degree, Ms. Rite
went on to earn a Master’s degree in Business Administration (MBA). Once Ms. Rite graduated
with an MBA, she was hired by Beetz, Inc. R. at 2. Founded in 1995, Beetz is a multi-billiondollar corporation on the leading edge of audio equipment. R. at 3–4.
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An Exceptional, Respected Worker. Ms. Rite’s initial role was as a sales consultant. She
was responsible for creating new brands, meeting with company investors, and traveling to meet with
other companies’ representatives and agencies selling Beetz products. R. at 4. Ms. Rite was an
exceptional sales consultant and was promoted to Lead Sales Consultant because she created the
most innovative products and generated the highest sales numbers for Beetz. R at 4. Ms. Rite’s strong
work ethic and creative mind made her the favored sales consultant among investors. R. at 4.
Confronting Her Gender Non-Conformity. While Ms. Rite was successful in her role at
Beetz, she struggled emotionally. During the day Ms. Rite would present as male, but once alone,
Ms. Rite would try to reconcile the disharmony that she felt between her gender at birth (male) and
her gender identity (female). R. at 4. This internal struggle led led Ms. Rite to search for professional
help. In December 2012, she consulted with psychotherapist Dr. Warren Gee about her gender
confusion and the associated discomfort. During the psychotherapy sessions, Dr. Gee learned about
Ms. Rite’s discomfort with her gender identity and anatomical sex and, after a few weeks,
determined that Rite suffered from gender dysphoria. R. at 4.
While gender non-conformity is not in itself a mental illness, when coupled with significant
distress it may be categorized as gender dysphoria. R. at 4, 5. Ms. Rite and others who experience
gender dysphoria experience the desire to portray their correct gender identity, it can differ from the
gender assigned at birth. Accordingly, those who have gender dysphoria attempt to present their
internal gender outwardly by changing the way they dress to changing their body/physical
appearance to represent their true gender. R. at 5. Because of the social stigma and the internal
confusion around gender non-conformity, individuals suffering from gender dysphoria may also have
depression or anxiety leading to less social interaction. R. at 5.
As a result of Ms. Rite’s therapy sessions, in early 2013 she began to identify as transgender.
R. at 5. She began taking medication to manage depression, continued to explore other treatment
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options, and began to think about transitioning. Transitioning is a complex process in which an
individual alters their birth sex, and while the process varies from person-to-person, it is generally a
long process.
After much contemplation Ms. Rite made the important decision to undergo gender
reassignment surgery. This surgery would be expensive, costing anywhere from $30,000 to $100,000
out of her pocket because the procedure was under Beetz’s employee health benefits plan.
In preparation for the procedure Ms. Rite saved money and started taking hormone
replacement therapy. R. at 6. The hormone therapy prescribed involved a combination of boosting
estrogen and blocking testosterone to encourage a physical change in Ms. Rite’s appearance to look
more feminine. R. at 6. Her physical changes would include breast growth, decreased muscle mass,
softening of the skin, and slower growth in body and facial hair. These changes would begin within a
few months of hormone therapy and then continue for a couple of years. R. at 6.
Applying for the New Position. In November 2013, the position of Executive Distributor
became available, because the former Executive Distributor had recently retired. Andre Young
announced that he would be selecting a sales consultant to the position of Executive Distributor.
R. at 6 The role Executive Distributor would be the primary point of contact for all of Beetz’s
sales and distribution ventures and would also meet with representatives from other companies
and agencies around the world. With the added responsibilities the Executive Distributor position
would also include a large pay increase. R. at 6.
Young believed that Rite and another sales consultant O’Shay Jackson would be the top
contenders to fill the role of Executive Director. R. at 6. Young interviewed both Rite and
Jackson, during Rite’s interview, she believed that it would be appropriate to reveal to Young
that she was going to undergo the transition process. During the interview Young did not ask
many questions regarding Rite transition plan.
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Presenting as a Woman. After about a month of Rite’s hormone treatment, she began to
present as a woman by growing out her hair, painting her nails, wearing makeup, and dressing
like a female. This however, caused some discourse among the Sales department and while some
supported Rite’s transition, others were less accepting. R. at 7. Rite on the other hand did not
allow her personal choices to affect her professionalism, and continued to excel as a sales
consultant. Furthermore, while most investors supported Rite’s transition those that disapproved
did not let that affect their business with Beetz. R. at 7.
In February 2014, Jackson was given the Executive Distributor position and Rite was
subsequently transferred to a different department. Young’s reasoning was that because “Beetz
takes great pride in its image… it would be in the best interest to relocate her [Rite] to another
department with less public visibility.” Rite was then transferred to the Graphic Design
Department; there Rite’s duty was to be a graphic designer. While the pay grade was the same as
her old job, there was significantly less interaction with people inside and out of the company. R.
at 8. Most of Rite’s contact with investors was now conducted via telephone or email.
Understandably Rite was upset and believed that this was a response to her transgender identity.
R. at 8.
A short time later Dr. Gee determined that Rite was ready to undergo the reassignment
surgery and had her meet with Dr. Romel Dreigh (“Dr. Dreigh”) to approve Rite for the surgery.
Once Rite had Dr. Dreigh’s approval she met with Tamika Woods (“Woods”) Beetz’s Director
of Human Resources (“H.R.”) to find out what Beetz’s policy was on her need to take medical
leave. R. at 8. Rite was referred to the Beetz’s Employee Handbook (“the Handbook”) for
information about medical leave. R. at 8.
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On November 1, 2014, Rite applied in writing for FMLA leave. Because Rite had already
used most of her paid sick leave to conduct her hormone therapy. On November 7, 2014, Woods
requested that Rite submit a medical certification to support her requested leave. R. at 8.
Rite had Dr. Dreigh submit a medical certification on November 8, 2014, however, by
November 13, 2014 Rite had not received a response from the H.R. department and decided to
contact Woods directly to find the status of her application. R. at 8. Rite was informed that
because of the unprecedented nature of the request Woods transferred the application to the
senior management for a final decision. Rite, worried about her application deicide to email
Young directly to find out the status. Young responded by sending the application to the Beetz
legal department. R. at 9. Young then orally informed Rite that “she [Rite] should not worry
about the logistics of the approval process and that she would be contacted soon.” R. at 9. Rite
took this information as conformation that her request would be approved and felt confident in
moving forward with the surgery.
On January 30, 2015, Rite had the gender reassignment surgery performed, she also
underwent a breast augmentation to enhance her feminine features. R. at 9. After the surgery Rite
was restricted to bed rest for at least one week and would begin to feel more comfortable after a
couple of weeks. R. at 9. Dr. Dreigh informed Rite that after the rest period that she could then
return to her normal activities but would need to avoid any high stress activities for three to four
weeks. R. at 9.
On February 1, 2015, Woods left Rite a voicemail letting her know that her FMLA
application was denied and that any more time taken off would result in disciplinary action. Rite
did not review this voicemail until February 8, 2015, but she did not plan on returning to work
until March 6, 2015. However, Rite never had the opportunity to return to work because Woods
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called on February 27, 2015, informing that Rite was terminated for failing to come to work. R.
at 9.
On March 13, 2015, Rite contacted the Equal Employment Opportunity Commission
(“EEOC”) and filed a complaint that Beetz had engaged in sex discrimination on the basis of
Rite’s transgender identity. This was an accumulation of Beetz’s discrimination of Rite, first for
passing her up on the Executive Distributor position and that she experienced negative treatment
in the workplace once she began to present herself as a female. R. at 9, 10.
Once the EEOC performed their investigation they determined that Rite’s claims had
merit and stratified the prima facie threshold in alleging sex discrimination in the work place.
With this information Rite filed suit under Title VII and FMLA violation on April 13, 2015. R. at
10.
The District Court. On April 15, 2014, Ms. Rite sued her employer under Title VII of the
1964 Civil Rights Act (“Title VII”) and the Family Medical Leave Act (“FMLA”) for sex
discrimination because she was transgender. R. at 10. The district court held that Title VII did
not prohibit discrimination on the basis of transgender status, thus barring Ms. Rite sex
discrimination claim against her employer. The district court also held that gender dysphoria
does not qualify as a serious health condition under FMLA, so her employer was not required to
grant FMLA leave for Ms. Rite’s surgery. R. at 21.
The Court of Appeals. Ms. Rite appealed this decision and the appellate court reversed.
Holding that the lower court erred by denying Rite’s claims under the statute, the court of
appeals said that discrimination resulting from a person’s gender is discrimination “because of
sex” under Title VII and that gender dysphoria qualifies as a “serious health condition” for which
gender reassignment surgery may be medically necessary under the FMLA. R. at 22.
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STATUTORY PROVISIONS
Title VII of the Civil Rights Act of 1964 (“Title VII”), provides, in relevant part, that “[i]t
shall be an unlawful employment practice for an employer . . . to discriminate against any
individual with respect to his compensation, terms, conditions, or privileges of employment,
because of such individual's race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e2(a)(1) (1964). Title VII provides various remedies for violations, including compensatory
damages such as back pay. § 2000e-5(g)(1). The Civil Rights Act of 1991 provided for damages
in cases of intentional employment discrimination and expanded compensatory damages under
Title VII to include “future pecuniary losses, emotional pain, suffering, inconvenience, mental
anguish, loss of enjoyment of life, and other nonpecuniary losses . . . .” § 1981a(b)(3)(1991).
This case also involves the statutory interpretation of the Family and Medical Leave Act
of 1993 (“FMLA”), providing that “an eligible employee shall be entitled to a total of [twelve]
workweeks of leave during any [twelve-]month period . . . [b]ecause of a serious health condition
that makes the employee unable to perform the functions of the position of such employee . . . .”
29 U.S.C. § 2612(a)(1)(D). Additionally, the FMLA defines a “serious medical condition” as:
“an illness, injury, impairment, or physical or mental condition that involves—(A) inpatient care
in a hospital, hospice, or residential medical care facility; or (B) continuing treatment by a health
care provider.” § 2611(11)(A)–(B).
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SUMMARY OF THE ARGUMENT
Ms. Rite may pursue her claims of discrimination because of sex under Title VII and a
violation of the Family Medical Leave Act against Beetz, Inc. because, as a transgender female
who underwent gender reassignment surgery, she is protected under both statutes. Congress
created Title VII to balance employer freedom with employee protection. Traits and
characteristics wholly unrelated to an employee’s ability to perform on the job have no place in
an employer’s decision to take adverse actions like terminating or refusing to hire someone.
When employers make employment-related decisions based on impermissible factors like sex,
the statute provides for compensatory and punitive damages. Because Ms. Rite’s employer made
an illegal, adverse employment decision based solely on sex, she is entitled to compensatory and
punitive damages.
Ms. Rite stated a viable claim for unpaid, job-protected leave under the FMLA because
gender dysphoria may be a serious health condition within the Act’s definition. A serious health
condition is an illness, injury, impairment, or physical or mental condition that involves inpatient
care or continuing treatment by a health care provider. There is an emergence of case law
recognizing gender dysphoria as a serious medical condition. That, coupled with the FEHBP’s
coverage of gender dysphoria related treatments, signifies a national trend not only recognizing
the validity of the transgender individual’s needs, but also a refusal to perpetuate the
discrimination evident in excluding this community from certain privileges. This Court should
uphold the Thirteenth Circuit’s decision to set a new standard for interpreting the FMLA
discrimination claims of transgender persons. Thereby granting Ms. Rite the opportunity to seek
back pay with interest, attorney’s fees, and costs related to her viable FMLA claim against Beetz,
Inc.
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STANDARD OF REVIEW
The factual inquiry in a Title VII case is whether the defendant intentionally
discriminated against the plaintiff, and discrimination should not be treated differently from any
other ultimate question of fact. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711
(1983). Accordingly, most courts hold that discrimination findings are subject to the clearly
erroneous standard of appellate review. Kim v. Coppin State College, 662 F.2d 1055 (4th Cir.
1981); Page v. U.S. Indus., Inc., 726 F.2d 1038 (5th Cir. 1984); Geisler v. Folsom, 735 F.2d 991
(6th Cir. 1984); Gilbert v. City of Little Rock, 722 F.2d 1390 (8th Cir. 1983); Atonio v. Wards
Cove Packing Co., 810 F.2d 1477 (9th Cir. 1987); Curry v. Oklahoma Gas & Elec. Co., 730 F.2d
598 (10th Cir. 1984); Baylor v. Jefferson Cty. Bd. Educ., 733 F.2d 1527 (11th Cir. 1984).
in the context of a civil case alleging discrimination, the Supreme Court explained:
Because a finding of intentional discrimination is a finding of fact, the standard
governing appellate review of a district court's finding of discrimination is that set
forth in FED. R. CIV. P. 52(a): “Findings of fact shall not be set aside unless
clearly erroneous, and due regard shall be given to the opportunity of the trial
court to judge of the credibility of the witnesses.” The question before us, then, is
whether the Court of Appeals erred in holding the District Court's finding of
discrimination to be clearly erroneous.
Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 573–76 (1985) (internal citations
and quotation marks omitted) (emphasis added).
ARGUMENTS AND AUTHORITIES
I.
MS. RITE, A TRANSGENDER WOMAN, STATED A LAWFUL SEX
DISCRIMINATION CLAIM UNDER TITLE VII OF THE 1964 CIVIL RIGHTS
ACT AND IS ENTITLED TO COMPENSATORY AND PUNITIVE DAMAGES
BECAUSE HER EMPLOYER DISCRIMINATED AGAINST HER ON THE
BASIS OF SEX.
Title VII of the Civil Rights Act of 1964 (“Title VII”) prohibits employment
discrimination on the basis of race, color, religion, sex, or national origin. 42 U.S.C. § 2000e10
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2(a). It is illegal for an employer to refuse to hire or to terminate any individual, or discriminate
against an individual with regard to terms and conditions of employment, because of one of the
bases. Id. A person who states a valid claim under Title VII is entitled to compensatory damages.
§ 2000e-5(g); §§ 1981a(a)(1), 1981a(b)(2)–(3) (1991). If the employer engaged in a
discriminatory practice with malice or reckless indifference to a federally protected right, a
person is entitled to punitive damages. § 1981a(b)(1). Ms. Rite was discriminated against on the
basis of her sex and her employer did so with malice or reckless indifference to her federally
protected rights under the Civil Rights Act.
A.
Despite being the best candidate for the position, Ms. Rite was not promoted
because her employer impermissibly discriminated against her on the basis
of sex.
Since the passage of the 1964 Civil Rights Act, society’s understanding of sex, gender,
and identity has evolved.1 Because “statutory prohibitions often go beyond the principle evil” in
mind when enacted by Congress, we are governed by the “provisions of our laws rather than the
principle concerns of our legislators.” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75,
79 (1988). The text of Title VII prohibits employment “discriminat[ion] because of . . . sex.” §
2000e-2(a). This “must extend to [sex-based discrimination] of any kind that meets the statutory
requirements.” Oncale, 523 U.S. at 80. Because her employer took adverse action against her
because of her sex and because of gender stereotypes, Ms. Rite states a lawful sex discrimination
claim. The Thirteenth Circuit correctly concluded that discrimination against transgender
individuals is discrimination because of sex because it is per se sex discrimination (necessarily
1.
Both the trial and appellate courts appropriately recognize this evolution by accurately referring to Ms. Rite
using female pronouns like “her” and “she.” Out of respect for Ms. Rite, we do the same in this brief.
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requiring the employer to consider sex in taking its action) and discrimination based on gender
stereotypes. This Court should affirm the ruling of the circuit court.
1.
Discrimination on the basis of sex can be based on gender stereotypes or
per se sex discrimination.
Title VII prohibits taking any adverse employment action against an individual because
of his or her sex.2 § 2000e-2(a). Sex discrimination can come in many forms—from subtle sex
stereotyping that spurs discriminatory action, to blatant and brazen sex discrimination. Ms. Rite
suffered both forms of discrimination at the hands of her employer; she was discriminated
against by her employer because of assumptions about sex and gender, and was discriminated
against simply because of her sex.
a.
Ms. Rite suffered unlawful employment discrimination based on
gender stereotypes.
An employer who makes employment decisions based on gender stereotypes, such as
assumptions or expectations about how males or females should dress or behave, commits
unlawful sex discrimination. Price Waterhouse v. Hopkins, 490 U.S. 228, 235 (1989). Similarly,
when an individual faces discrimination because he or she fails to comply with gender-based
expectations experiences discrimination based on sex. Id. Title VII’s “because of sex” language
concerns the “entire spectrum of disparate treatment of men and women resulting from sex
stereotypes.” Id. at 251 (quoting Los Angeles Dep’t of Water & Power v. Manhart, 435 U.S. 702,
707 n.13 (1978)). The words “gender” and “sex” are often used interchangeably to describe sex
discrimination prohibited by Title VII. See, e.g., id.
Note that the statute uses only gender-specific, male pronouns (i.e., “his” and “he”). This has
not stopped the Court from applying its protections equally to all genders.
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The majority of circuits have applied Price Waterhouse and held that transgender
individuals claiming discrimination because they do not conform with socially-defined gender
norms are protected from discrimination because of sex. Relying on Price Waterhouse and Title
VII precedent, a transgender female brought a claim alleging unlawful discrimination based on
sex when she was terminated by her employer. Glenn v. Brumby, 663 F.3d 1312 (11th Cir.
2011). The court concluded that the defendant-employer discriminated against the plaintiffemployee based on her sex when terminating her because she was transitioning from male to
female. Id. at 1321. The court said a person is considered transgender “precisely because of the
perception that his or her behavior transgresses gender stereotypes.” Id. at 1316. Therefore, there
is “congruence” between discriminating against transgender individuals and discrimination on
the basis of “gender-based behavioral norms.” Id.
When an employee began to express a more feminine appearance at work and notified his
employer that he was planning to transition from male to female, his suspension was
discriminatory and prohibited by Title VII. Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004).
The court said that discrimination against an individual for gender-nonconforming behavior
violates Title VII, regardless of the cause of the behavior. Id. at 575. It further reasoned that the
“narrow view” of the term “sex” in prior case law denying Title VII protection to transgender
employees was “eviscerated” by Price Waterhouse. Id. at 573. Similarly, courts have concluded
that previous approaches to Title VII that rejected claims by transgender plaintiffs have “been
overruled by the language and logic of Price Waterhouse.” Schwenck v. Hartford, 204 F.3d
1187, 1201–02 (9th Cir. 2000) (citing Title VII case law and concluding that a transgender
woman stated a claim of sex discrimination because of the perception that she was “a man who
‘failed to act like one.’”).
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b.
Ms. Rite suffered per se employment discrimination based on sex
because she is a transgender female.
The following analogy is helpful in illustrating this point:
Imagine that an employee is fired because she converts from Christianity to
Judaism. Imagine too that her employer testifies that he harbors no bias toward
either Christians or Jews but only “converts.” That would be a clear case of
discrimination “because of religion.” No court would take seriously the notion
that “converts” are not covered by the statute. Discrimination “because of
religion” easily encompasses discrimination because of a change of religion. But
in cases where the plaintiff has changed her sex[] and faces discrimination
because of the decision to stop presenting as a man and to start appearing as a
woman, . . . courts have allowed their focus on the label [“transgender”] to blind
them to the statutory language itself.
Schroer v. Billington, 577 F. Supp. 2d 293, 306–07 (D.D.C. 2008).
The plain language of Title VII protects transgender individuals like Ms. Rite
from gender-based discrimination. To hold otherwise would “represent an elevation of
judge-supposed legislative intent over clear statutory text.” Id. at 307 (quoting Zuni Pub.
Sch. Dist. No. 89 v. Dep’t of Educ., 550 U.S. 81 (2007) (Scalia, J., dissenting) (internal
quotation marks omitted)).
i.
The plain language of the statute protects transgender
individuals like Ms. Rite from gender-based discrimination.
The court's analysis “must begin . . . with the language of the statute itself” and when the
language is plain “it is also where the inquiry should end . . . .” United States v. Ron Pair Enters.,
489 U.S. 235, 241 (1989). “[T]he sole function of the courts is to enforce [the statute] according
to its terms.” Caminetti v. United States, 242 U.S. 470, 485 (1919).
Therefore, an employer’s refusal to hire a transgender female was literally discrimination
“because of . . . sex” under Title VII. Schroer at 293. Diane Schroer, a transgender female, was
offered a position before she changed her name and began presenting as a woman. When she
notified her employer than she was under a doctor’s care and would be transitioning, the
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employer withdrew the offer because the plaintiff would not be “a good fit.” Id. at 299. The court
held that the employer’s refusal to hire the plaintiff because she planned to change her
anatomical sex by undergoing gender reassignment surgery was per se sex discrimination. It also
examined previous decisions that rejected claims by transgender individuals and said those
“represent an elevation of ‘judge-supposed legislative intent over clear statutory text,’” which is
“no longer a tenable approach to statutory construction.” Id. at 307.
“Gender” is a component of “sex,” a word appearing in the statute as a basis for which no
employer can discriminate. Legal and non-legal dictionaries define sex to include “gender” and
“the state of being male or female,” i.e., one’s gender. Gender, BLACK’S LAW DICTIONARY
(2011); Sex, Merriam-Webster, http://www.merriam-webster.com/dictionary/sex (last visited
Feb. 16, 2016).
ii.
When faced with cases involving other protected bases
under nondiscrimination statutes, this Court has broadly
interpreted the statute as providing coverage to individuals
discriminated against.
Title VII is a “remedial statute to be liberally construed. . . . [Its provisions] evince[] a
congressional intent to strike at the entire spectrum of disparate treatment of men and women in
employment.” Oncale, 523 U.S. at 78 (Scalia, J., writing for a unanimous court). When faced
with challenges to similar statutes purporting to provide rights to one segment of a protected
group and not another, this Court should interpret the statutes to provide more inclusive rights,
not less.
Discrimination because of race has never been narrowed to prohibit discrimination
against only one race or another. Indeed, courts recognize that prohibiting racial discrimination
“protects employees from being discriminated against because of an interracial marriage, or
based on friendships that cross racial lines.” Schroer, 577 F. Supp. 2d at 307.
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Similarly, after Congress passed the Civil Rights Act of 1866, providing additional
protections to make and enforce contracts . . . as enjoyed by white citizens,” this Court said that
the statute, along with Title VII’s prohibition against discrimination because of race, also
protected whites against discrimination on the basis of race. McDonald v. Santa Fe Trail Transp.
Co., 427 U.S. 273, 289 (1973) (interpreting 42 U.S.C. § 1981). Although the “immediate impetus
for the bill was the necessity for further relief of the constitutionally emancipated former Negro
slaves,” this Court believed that a “broader principle than would have been necessary simply to
meet the particular and immediate plight of the newly freed Negro slaves” was appropriate and
applied that prohibition against discrimination to white persons. Id. at 296.
Congress tasked the Equal Employment Opportunity Commission (“EEOC”) with
enforcing Title VII. When interpreting the statute, EEOC interpretations are entitled to great
deference by the Court. Griggs v. Duke Power Co., 401 U.S. 424, 433–34 (1971). The Court has
cited EEOC interpretive guidelines and investigations as sources to look to in determining
whether the statute protects a particular individual or situation. See, e.g., Newport News
Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669, 673 & n.7 (1983).
iii.
Interpreting the statute is the responsibility of the Court,
and reliance on congressional inaction is not persuasive.
Subsequent Congressional inaction is “a dangerous ground on which to rest an
interpretation of a prior statute.” Pension Ben. Guar. Corp. v. LTV Corp., 496 U.S. 633, 650
(1990). Although Congress has not passed legislation to explicitly cover transgender individuals
under Title VII, this lacks “persuasive significance because several equally tenable inference
may be drawn from such inaction.” Id. One such inference is that some “[m]embers of Congress
believe . . . that Title VII means what it says, and that the statute requires[] not amendment, but
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only correct interpretation.” Schroer at 308. Perhaps Congress is satisfied with the Court’s broad
interpretation in Price Waterhouse and subsequent holdings in Title VII cases concerning
discrimination because of sex.
It would be irresponsible (and contrary to principles of stare decisis) to argue that this
Court has to misinterpret the statute to induce Congress to act affirmatively. Corrective
legislation—where Congress steps in to enact legislation to fix the court’s misinterpretation of a
statute—is unnecessary and a waste of resources when a statute is unambiguous. See, e.g., Gen.
Elec. v. Gilbert, 425 U.S. 125 (1976), in which the Court limited Title VII’s protection against
sex discrimination. Congress subsequently amended Title VII and “unambiguously expressed its
disapproval of both the holding and the reasoning of the Court in the Gilbert decision.” Newport
News, 462 U.S. 676, 678 (1983).
iv.
Legislative history can be instructive in statutory
interpretation, but this Court must settle the issue using the
principle of stare decisis.
Although the protection of transgender persons like Ms. Rite was not likely considered by
Congress at the time it passed Title VII’s prohibition against sex discrimination,3 “statutory
provisions often go beyond the principal evil [they were passed to combat] to cover reasonable
comparable evils.” Oncale, 523 U.S. at 79. As this Court has observed, we are governed by
principles of law, not the “principal concerns of our legislators.” Id. Title VII’s prohibition
3
Nevertheless, when courts interpret the statute too narrowly, members of Congress have spoken out and
stated that they intended the statute to apply broadly. See, e.g., Remarks of Sen. Williams, 123 CONG. REC. 7539
(1977) (“[T]he Court has ignored congressional intent in enacting [T]itle VII of the Civil Rights Act—that intent
was to protect all individuals from unjust employment discrimination.”)
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against discrimination because of sex “must extend to [sex-based] discrimination of any kind that
meets the statutory requirements.” Id. at 80.
In a case interpreting coverage under Title VII because of gender, the Court held that
legislative history does not create any “negative inference” that would limit the scope of the
Civil Rights Act. Newport News, 462 U.S. at 680 (although “congressional discussion focused on
the needs of female members of the work force rather than spouses of male employees[, T]his
does not create a ‘negative inference’ limiting the scope of the Act to the specific problem that
motivated its enactment.”) In fact, Congress assumed the Court will interpret the statute in such a
way as to resolve the issue on “the basis of existing [T]itle VII principles” Id. at 680, n.20.
2.
The one and only circumstance in which an employer can consider
gender when making an employment decision is inapplicable to Ms. Rite
and this case.
Title VII allows gender as a BFOQ reasonably necessary to the normal operation of the
particular business, so the inference is that “in all other circumstances, a person’s gender may not
be considered in making decisions that affect her.” Price Waterhouse, 490 U.S. at 242.
3.
Ms. Rite suffered an adverse employment action by her employer when
the company failed to promote her and instead transferred her to a
different department.
This Court has held that Title VII “not only covers terms and conditions in the narrow
contractual sense, but ‘evinces a congressional intent to strike at the entire spectrum of disparate
treatment of men and women.’” Oncale, 523 U.S. at 78 (quoting Meritor Savings Bank, FSB v.
Vinson, 477 U.S. 57, 64 (1986)).
Diane Schroer, a transgender woman who was well qualified for and received a job at the
Library of Congress. But that offer was subsequently revoked after the employer learned that she
planned to undergo gender reassignment surgery. Schroer v. Billington, 577 F. Supp. 2d 293, 295
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(D.D.C. 2008). Ms. Schroer was not just well qualified, she “received the highest interview score
of all eighteen candidates” and a unanimous recommendation by the selection committee. Id. at
296. Only when Schroer disclosed that she was transgender did the employer suddenly have
concerns and decided not to hire her. Instead, the position went to an applicant with a “lower
total interview score” who presented “fewer complications” (i.e., he was not transitioning from
male to female). Id. at 299. The court concluded that the refusal to hire Ms. Schroer violated
Title VII’s prohibition on sex discrimination. Id. at 308.
There is no doubt that Ms. Rite is exceedingly qualified for the position she applied for.
She had excellent performance evaluations—better, in fact, than the individual they eventually
promoted.
4.
Ms. Rite was treated differently solely because of her gender.
In making a decision an employment decision, gender must be irrelevant. PWH at 214.
An individual claiming employment discrimination because of sex must show the employer
relied on gender in making its decision and that no bona fide occupational qualification (BFOQ)
exemption existed. Price Waterhouse, 490 U.S. at 251.
No BFOQ exists here. The reasons offered by the employer for not hiring Ms. Rite are
mere pretext and in violation of Title VII.
A.
Because Ms. Rite has a lawful claim of employment discrimination on the basis
of sex, she is entitled to compensatory and punitive damages as provided by an
addition to Title VII of the Civil Rights Act.
1.
Ms. Rite is entitled to compensatory damages as provided by statute.
The 1964 Civil Rights Act, along with the 1991 amendments to the act, provide for
compensatory damages for violations of Title VII. These include back pay, future pay, and other
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damages as the court may deem appropriate. Ms. Rite is rightfully entitled to recover under these
provisions.
2.
Ms. Rite is entitled to punitive damages because her employer engaged
in a discriminatory practice with malice or, in the alternative, reckless
indifference, to her federally protected rights.
The 1991 Civil Rights Act added additional remedies for victims of employment
discrimination—chief among them, punitive damages. By adding this remedy, Congress
attempted to further dissuade an employer who would make an adverse employment decision
based on an impermissible ground. Whether the court finds Ms. Rite’s employer acted
maliciously or with reckless indifference, she is nevertheless entitled to punitive damages under
the statute.
II.
MS. RITE STATED A VIABLE CLAIM FOR UNPAID, JOB-PROTECTED
LEAVE TO UNDERGO GENDER REASSIGNMENT SURGERY UNDER THE
FAMILY MEDICAL LEAVE ACT OF 1993.
Congress enacted the Family Medical Leave Act of 1993 to entitle employees to take a
reasonable leave from work for medical reasons in a manner that, consistent with the Equal
Protection Clause of the Fourteenth Amendment, minimizes gender discrimination in the
workplace. 29 U.S.C. §2601(b)(1)–(5). The FMLA entitles eligible employees of a covered
employer to take job-protected leave for up to a total of twelve workweeks in any twelve-month
period because of a serious health condition that makes the employee unable to perform the
functions of his or her job. See § 2612(a)(1)(D); 29 C.F.R. § 825.100(a); § 825.200(b). It is
uncontested that Ms. Rite is an eligible employee and Beetz, Inc. is an employer subject to the
FMLA. R. at 15*18. The issue presented is whether Ms. Rite’s diagnosis of gender dysphoria
qualifies as a serious health condition, as defined by the FMLA, entitling her to unpaid job20
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protected leave to undergo gender reassignment surgery. Ms. Rite has a serious health condition
because she was diagnosed with gender dysphoria. R. at 4*4.
A.
Gender Dysphoria May Be Considered a Serious Health Condition under the
Plain Meaning of the Family Medical Leave Act of 1993.
Cases involving statutory interpretation must begin with the analysis of the language
employed by Congress. U.S. v. Goodyear Tire & Rubber Co., 493 U.S. 132, 138 (1989). If the
statutory language is not dispositive, the interpretation must shift its focus to the legislative
history, purpose, and operation of the FMLA. See id. In the instant case, Ms. Rite has a serious
health condition within the plain meaning of the FMLA.
The FMLA defines a “serious health condition” as “an illness, injury, impairment, or
physical or mental condition that involves—(A) inpatient care in a hospital, hospice, or
residential medical care facility; or (B) continuing treatment by a health care provider.”
§2611(11)(A)-(B). In 2013, the definition expanded by including chronic conditions. 29 C.F.R.
§825.115(c). Chronic serious health conditions: (1) require periodic visits (at least twice a year)
for treatment by a health care provider; (2) continue over an extended period of time; and (3)
may cause episodic rather than a continuing period of incapacity. Id. at (c)(1)-(3). Because the
petition before the Court resulted from the reversal of a motion to dismiss, Ms. Rite needs only
to allege sufficient facts to allege that gender dysphoria is a serious medical condition under the
FMLA. Ms. Rite’s allegations are sufficient.
1.
Gender Dysphoria Is a Disorder Listed by the World Health
Organization’s International Classification of Diseases.
The World Health Organization lists gender dysphoria in its International Classification
of Diseases—the standard diagnostic tool for epidemiology, health management and clinical
purposes—under disorders of adult personality and behavior. Word Health Organization, ICD-10
Version:2016(V)
(F64)
(Jan.
21
30,
2016,
1:20pm),
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http://apps.who.int/classifications/icd10/browse/2016/en#/F64. This solidifies its classification as
a health condition leaving only the descriptor, “serious,” at issue.
The word “serious” ordinarily implicates something that is important or, when an injury
or illness is involved, something that is dangerous or potentially life threatening. Serious,
BLACK’S LAW DICTIONARY (10th ed. 2014). Although a combination of anti-depressants and
anti-anxiety medications enable Ms. Rite to cope with her gender dysphoria R. at 5*4-5, it does
not lessen the seriousness of her health condition. Transgender individuals may resort to
dangerous and drastic measures because of the distress caused by their gender dysphoria.
Konitzer v. Frank, 711 F. Supp. 2d 874, 905–06 (E.D. Wis. 2010) (a transgender female prisoner
made six attempts to castrate herself and twice attempted suicide); Kosilek v. Maloney, 221 F.
Supp. 2d 156, 164 (D. Mass. 2002) (a transgender female prisoner twice attempted suicide
twice—once by taking an antidepressant and once when attempting to castrate herself). It follows
that the plain meaning of “serious health condition” may include gender dysphoria, supporting
Ms. Rite’s claim under the FMLA.
2.
Gender Dysphoria Treatment May Involve Inpatient Care in a Hospital.
Inpatient care is defined as “an overnight stay in a hospital, hospice, or residential medical care
facility, including a period of incapacity . . . or any subsequent treatment in connection with such
inpatient care.” 29 C.F.R. § 825.114 (2013). An incapacity is an “inability to work . . . or
perform other regular daily activities due to the serious health condition, treatment therefore, or
recovery therefrom.” Id. An incapacity must be for a period of three full, consecutive calendar
days. Hayduk v. City of Johnstown, 580 F. Supp. 2d. 429, 464 (W.D. Pa. 2008). The Eighth
Circuit provided an example of a serious medical condition that fulfills the three-day
requirement. Caldwell v. Holland of Texas, Inc., 208 F.3d 671, 673 (8th Cir. 2000). In that case,
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a boy had an ear infection that resulted in a need for surgery and a ten-day antibiotic therapy. Id.
The court determined that the lower court erred by granting summary judgment to the boy’s
mother’s employer because the mother sufficiently plead that the boy’s serious medical condition
resulted in an incapacity lasting for at least three-consecutive days under the FMLA. Id. at 677.
Ms. Rite had been on hormone replacement therapy for two years prior to her gender
reassignment surgery. R. at 5*5, 9*9. Her surgery included gender reassignment, breast
augmentation, and further facial surgery. R. at 9*10. Her surgeon told Ms. Rite to stay in bed for
at least a week and said she could return to daily activities after one to two weeks. R. at 9*10.
Although the record is silent as to the amount of time Ms. Rite spent in the hospital, it is
reasonable to assume that it is possible she was required at least to stay overnight. Further, the
record does not indicate that Ms. Rite has terminated treatment with Dr. Gee. Thus, the treatment
Ms. Rite sought for her gender dysphoria may involve inpatient care in a hospital.
3.
Gender Dysphoria May be a Mental Condition that Involves Continuing
Treatment by a Healthcare Provider
An individual diagnosed with gender dysphoria, previously gender identity disorder
(GID), is someone who suffers “from strong, persistent discomfort between biological sex and
experienced/expressed gender, with significant impairment in interpersonal, familial, social,
professional, and other important areas of functioning.” Dragana Duišin ET AL., Personality
Disorders in Persons with Gender Identity Disorder, 2014, 1 (May 13, 2014) available at
http://dx.doi.org/10/1155/2014/809058 (citing American Psychiatric Association, Diagnostic and
Statistical Manual of Mental Disorders (American Psychiatric Ass’n et al. eds., 5th ed. 2013)).
Individuals with gender dysphoria tend to experience higher than average rates of psychiatric
disorders, such as negative self-image, low self-esteem, adjustment disorders, depression,
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suicidality, and personality disorders. Id. Although an increase in the prevalence of psychiatric
disorders suggests gender dysphoric patients have a mental disorder, gender dysphoria is not a
mental
disorder.
Gender
Dysphoria,
Am.
Psychiatric
Ass’n,
http://dsm5.org/documents/gender%20dysphoria%20fact%20sheet.pdf (last visited Feb. 13,
2016). Rather, the critical element in a diagnosis of gender dysphoria is the presence of clinically
significant distress associated with the condition. Id.
The intensity of the distress associated with gender dysphoria varies depending on the
individual. Fields v. Smith, 712 F. Supp. 2d 830, 841–42 (E.D. Wis. 2010), aff’d 653 F.3d 550
(7th Cir. 2011). Medical doctors with experience in treating transgender individuals agree that
gender dysphoria is a serious medical condition treated by a clearly defined standard of care. Id.
at 841–44. The standard of care, referred to as the “triadic treatment,” includes: (1) a real life
experience that helps a person socially take on the role of the gender he or she wants to assume,
(2) hormone therapy, and (3) surgery that includes genital alteration. Id. at 844.
This is
consistent with the standard of care promulgated by the World Professional Association for
Transgender Health (“WPATH”). Glenn v. Brumby, 724 F. Supp. 2d 1284, 1289 (N.D. Ga.
2010).
Ms. Rite has been under the care of Dr. Warren Gee, a psychotherapist, since December
of 2012. R. at 4*3-4. She made numerous visits to Dr. Gee in an attempt to abate her anxiety and
discomfort related to the significant distress caused by her gender nonconformity. R. at 4-5*4.
Although gender reassignment surgery is the final step in the triadic treatment, it is likely that
Rite will require continuing care by a healthcare provider related to the treatment of her gender
dysphoria in compliance with the standard of care promulgated by WPATH.
4.
Gender Dysphoria May Be a Chronic Serious Health Condition as
Defined by § 825.115(c)
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The FMLA states that a chronic serious health condition (1) requires periodic visits (at
least twice a year) for treatment by a health care provider, (2) continues over an extended period
of time, and (3) may cause episodic rather than a continuing period of incapacity. 29 C.F.R. §
825.115(c) (1)–(3). Ailments that may be treated with one medical treatment, even with a
subsequent follow-up call from a physician, fail to qualify as a chronic health condition under the
FMLA. Phinizy v. Pharmacare, 569 F. Supp. 2d 512, 515 (W.D. Pa. 2008) (holding the single
medical treatment sought for an employee’s bronchitis over a two-year period with a single
follow-up phone call with her healthcare provider failed to establish a chronic serious health
condition.). Allowing the qualification of ailments that clear up within a few days of selfmedication and treatment would provide FMLA protection for any sporadic absences from work.
Id. This type of extension is not something the courts are willing to do. Id.
However, a Pennsylvania District Court made several poignant points in a 2008 FMLA
related decision. Hayduk v. City of Johnstown, 580 F. Supp. 2d 429, 467 (W.D. Pa. 2008). First,
the court reasoned that a serious medical condition is not an absolute necessity for coverage
under the FMLA because that type of diagnosis could be particularly challenging in a patient
suffering from a chronic health condition. Id. It would be inequitable to deny coverage under the
FMLA because a doctor was unable to make the connection before the employee was terminated.
Id. Second, the availability of even generally effective treatment does not void the FMLA’s
protection. Id. Although an employee must show incapacity, Congress did not intend to deny
FMLA coverage to those whose physicians are successful in the mitigation of the frequency or
incapacity related to the health condition. Id. Congress expressly excludes the common cold, the
flu, earaches, upset stomachs, minor ulcers, headaches other than migraine, etc. from qualifying
as a chronic health condition. 29 C.F.R. § 825.113(d).
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Applying the textual canon ejusdem generis, it follows that Congress had no intention of
excluding gender dysphoria from FMLA coverage. Gender dysphoria requires a significant
amount of distress observed over a period of time for diagnosis. R. at 5*4. Gender dysphoria is
distinguishable from the listed illnesses because they are transient whereas gender dysphoria has
an indefinite duration.
Further, Dr. Gee treated Ms. Rite for two years before her reassignment surgery. R. at
4*3, 9*9. She exhausted most of her paid sick leave due to her hormone therapy sessions with
him. R. at 8*9. It is most likely that Ms. Rite, as an employee of 10 years, had more than two
sick days per year. Therefore, it follows that Ms. Rite most likely attended more than the
required periodic visits for treatment by a healthcare provider over an extended period of time.
Ms. Rite’s allegation that gender dysphoria may be a chronic serious health condition is
sufficient because her distress has required periodic visits with a healthcare provider over a twoyear period.
5.
Gender Dysphoria Is a Serious Medical Condition in the Eight
Amendment Medical Care Context
The Eighth Amendment protects individuals from cruel and unusual punishment. U.S.
CONST. amend. VIII, cl. 3. Most cases addressing the issue of whether gender dysphoria is a
serious health condition are discussed in the context of an Eighth Amendment violation. See,
e.g., Fields, 712 F. Supp. at 830; Konitzer, 711 F. Supp. 2d 874; Kosilek, 221 F. Supp. 2d 156.
Transgender female prisoners, denied hormone replacement therapy and/or gender reassignment
surgery, found relief when courts acknowledged that their serious health needs were neglected in
violation of their Eighth Amendment right to be free from cruel and unusual punishment. Id. In
2012, a Federal District Court in Massachusetts further determined that blanket prohibitions of
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gender reassignment surgery violate the Eighth Amendment rights of transgender individuals.
Soneeya v. Spencer, 851 F. Supp. 2d 228, 248 (D. Mass. 2012) .
In determining the serious medical needs of a prisoner, courts consider: (1) the
existence of an injury that a reasonable doctor or patient would find important or worthy of
comment or treatment; (2) the presence of a medical condition that significantly impacts an
individual’s daily activities; or (3) the existence of chronic or substantial pain. Gutierrez v.
Peters, 111 F.3d 1364, 1373 (7th Cir. 1997). The second and third factors are implicated when
analyzing the needs of a transgender individual. Transgender prisoners have demonstrated the
seriousness of their medical need for reassignment surgery in their attempts at self-castration and
suicide. See, e.g., Konitzer, 711 F. Supp. 2d at 905–06; Kosilek, 221 F. Supp. 2d at 164. The
deliberate indifference to prisoners’ serious medical needs (e.g., a transgender individual’s need
for reassignment surgery) is a violation of an individual’s rights under the Eight Amendment.
Norsworthy v. Beard, 87 F. Supp. 3d 1164, 1170 (N.D. Cal. 2015). Thus, gender dysphoria is a
serious medical condition in the Eighth Amendment medical care context.
B.
The FMLA’s Preambles Support a Finding that Congress did not Intend to
Categorically Exclude Transgender Individuals from Coverage under the
FMLA
Given the scarcity of precedent related to a transgender individual’s rights, it is
imperative to consider the supportive preambles. Congress enacted the FMLA because it found,
inter alia, that job security was inadequate for employees who have serious health conditions
that prevent them from working for temporary periods of time. 29 U.S.C. § 2601(a)(4). The
FMLA addresses the needs of Americans to have security in their places of employment without
sacrificing their family or medical needs. See § 2601(b). Congress expressly stated that a purpose
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of the FMLA was to accomplish the entitlement of employees to take reasonable leave for
medical reasons “in a manner that, consistent with the Equal Protection Clause of the Fourteenth
Amendment, minimizes the potential for employment discrimination on the basis of sex by
ensuring generally that leave is available for eligible medical reasons . . . on a gender-neutral
basis . . . .” § 2601(b)(2), (4). Although supporters of the Act seemed to focus on protecting the
economic interests of families and the importance of maternity leave for mothers, the stated
purpose clearly does not exclude others whom may be economically disadvantaged by gender
discrimination in the workplace. Id. see also The Family and Medical Leave Act of 1193:
Hearing on H.R.1 Before the S. Comm. on Labor-Mgmt. Relations, 103rd Cong. 5-6 (1993)
(statement of Representative William D. Ford).
The title of the Act—The Family and Medical Leave Act—demonstrates Congress’ intent
to differentiate between leave related to family matters and leave related to medical matters. This
Court has considered the title of the Act in interpreting statutory language. Holy Trinity Church
v. U.S., 143 U.S. 457, 462 (1892).
In Holy Trinity, the issue centered on the categorical
exclusion of foreign workers from the labor market in the United States. Id. at 458. In contrast,
this case focuses on whether transgender individuals are categorically included in the protections
afforded by the FMLA. Because Congress expressly stated the FMLA’s purpose was to ensure
leave on a gender-neutral basis, it could not have intended to categorically exclude transgender
individuals from protection. Doing so would be counterintuitive because the exclusion would
necessarily be based on gender discrimination.
C.
Refusing to Allow Transgender Individuals Rights Under the FMLA Would
Perpetuate Employment Discrimination and Economic Insecurity Among the
Transgender Community
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The transgender community would suffer continued employment discrimination and
economic insecurity if this Court refuses to extend FMLA coverage to these individuals. The
federal government has recognized the need to eliminate discrimination against transgender
individuals by requiring a categorical inclusion of transgender treatment modalities. See U.S.
OFFICE OF PERS. MGMT., HEALTH CARE & INS., FEHBP LETTER NO. 2015-12, COVERED
BENEFITS FOR GENDER TRANSITION SERVICES (June 23, 2015). Moreover, it is important to
eliminate gender-based discrimination against transgender individuals because its reaching
effects perpetuate economic insecurity faced by many in the transgender community. See Jaime
M. Grant et al., Injustice at Every Turn: A Report of the National Transgender Discrimination
Survey, Nat’l Ctr. for Transgender Equity (2011), at 9, available at
http://www.transequality.org/sites/default/files/docs/resources/NTDS_Report.pdf.
1.
The Federal Government Demonstrated a Shift Toward Eliminating All
Forms of Discrimination Against Transgender Individuals When it
Mandated Transition-Related Coverage for FEHBP Participants
The U.S. Office of Personnel Management (“OPM”) issued a letter to insurance
companies that participate in the Federal Employee Health Benefits Program (“FEHBP”)
regarding criteria for diagnosis of gender dysphoria, treatment necessary, and the need for
benefits consistent with the necessary treatment related to their diagnosis. U.S. OFFICE OF PERS.
MGMT., HEALTH CARE & INS., FEHBP LETTER NO. 2014-17, GENDER IDENTITY
DISORDER/GENDER DYSPHORIA (June 13, 2014). This letter lifted the ban on all gender-transition
related coverage under the FEHBP signifying an attempt to resolve discrimination against
transgender individuals. Id. A second letter was issued the following year informing insurance
companies that they may not categorically exclude services, drugs, or supplies related to gender
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transition. U.S. OFFICE
OF
PERS. MGMT., HEALTH CARE & INS., FEHBP LETTER NO. 2015-12,
COVERED BENEFITS FOR GENDER TRANSITION SERVICES (June 23, 2015).
To disallow transgender individuals job-protected leave under the FMLA would
effectively quash and repel the OPM’s affirmative actions addressing discrimination against
transgender individuals. The OPM illustrates its recognition of the need to eliminate
discrimination against transgender individuals by their issuance of this letter discussing the
serious need for gender dysphoria treatment under the FEHBP.
2.
Denying FMLA Job-Protected Leave to Transgender Individuals has
Reaching Effects
The acts and characteristics that define transgender individuals as transgender are those
that contradict gender-appropriate appearance and behavior. Glenn, 663 F.3d at 1316. It follows
that discrimination against a transgender individual is gender-based discrimination. Id. at 1317.
A plethora of economic hardships related to this type of discrimination exist. See Jaime
M. Grant et al., Injustice at Every Turn: A Report of the National Transgender Discrimination
Survey,
Nat’l
Ctr.
for
Transgender
Equity
(2011),
at
9,
available
at
http://www.transequality.org/sites/default/files/docs/resources/NTDS_Report.pdf. In a survey
conducted by the National Center for Transgender Equality, ninety percent of over six thousand
participants reported either experiencing harassment, mistreatment or discrimination on the job
or taking actions to hide who they are to avoid it. Id. Nearly half—forty-seven percent—said
they had an adverse job outcome, such as, being fired, not hired, or denied a promotion. Id.
Instead of facing those hurdles, the majority of transgender individuals hide their gender or
gender transition, or delay a transition altogether. Id. Transgender individuals who lose their job
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due to bias are more likely to experience homelessness, drinking or drug abuse, incarceration,
and are at more than double the risk of HIV infection. Id.
Failing to extend job-protected leave to transgender individuals exacerbates this
discriminatory environment by effectively dismissing the validity of those individuals’ needs.
Essentially, refusing to allow job protected leave presents transgender individuals with a
Hobson’s choice. Forcing a choice between personal health and economic security. Forcing an
individual to continue life in a constant state of significant distress in order to retain employment
is not a viable option. Categorically excluding transgender individuals from protections provided
by the FMLA ignores the seriousness of the issue at bar perpetuating employment discrimination
and economic insecurity among the transgender community.
CONCLUSION
This Court should affirm the judgment of the court of appeals with regard to Ms. Rite’s
claim under Title VII and the FMLA. In doing so, this Court should hold that Ms. Rite states a
claim under Title VII for sex discrimination that entitles her to compensatory and punitive
damages and a claim under the FMLA for wrongful termination that entitles her to back pay with
interest, attorney’s fees, and related costs.
Respectfully submitted,
________________________
Attorneys for Respondent
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