IN THE SUPREME COURT OF THE UNITED STATES

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 20
Counsel for Respondent
QUESTIONS PRESENTED FOR REVIEW
I.
Whether Erika Rite, a transgender woman, is protected from employment
discrimination under Title VII of the Civil Rights Act of 1964 on the basis of sex
discrimination.
II.
Whether gender dysphoria qualifies as a serious medical condition under the
Family Medical Leave Act (FMLA) where the medical symptoms and treatment
force a victim to undergo extensive medical treatment.
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TABLE OF CONTENTS
QUESTIONS PRESENTED FOR REVIEW ................................................................................. i
TABLE OF AUTHORITIES......................................................................................................... iv
OPINIONS BELOW ...................................................................................................................... x
STATUTORY PROVISIONS ....................................................................................................... x
STATEMENT OF THE CASE ...................................................................................................... x
SUMMARY OF ARGUMENT………………………………………………….……………..…1
ARGUMENT ................................................................................................................................. 2
A TRANSGENDER EMPLOYEE IS PROTECTED FROM EMPLOYMENT
DISCRIMINATION UNDER TITLE VII OF THE CIVIL RIGHTS
ACT OF 1964..................................................................................................................... 2
A.
The Language and Evolving Nature of Title VII Shows that Its Protection
Against Sex Discrimination Extends to Transgender Employees.......................... 4
1.
Transgender Discrimination is so Closely Related to Sex Discrimination
That Excluding It from the Meaning of Sex Discrimination Would
Severely Limit the Power of Title VII ............................................................ 5
2.
Nowhere in the Plain Language of Title VII is the Intent to Limit it to
Biological Sex Discrimination Apparent ....................................................... 9
B.
The Actions of Petitioner Constitute Unlawful Sex Discrimination
Under Title VII...................................................................................................... 11
C.
As a Matter of Policy, Excluding Transgender Employees from Title VII
Protection Exposes Them to a Windfall of Discriminatory Practices and
Promotes a Hostile Work Environment for Employees That Do Not
Conform to Traditional Gender Stereotypes......................................................... 14
WHETHER GENDER DYSPHORIA QUALIFIES AS A SERIOUS MEDICAL
CONDITION UNDER THE FAMILY MEDICAL LEAVE ACT (FMLA) WHERE
THE MEDICAL SYMPTOMS AND TREATMENT FORCE A VICTIM TO
UNDERGO EXTENSIVE MEDICAL TREATMENT.................................................... 17
A.
Ms. Rite’s Diagnosis and Surgical Treatment of Gender Dysphoria
Exceeds the Minimal Requirements Set Forth By Congress
to be Considered a Serious Health Condition Under the FMLA......................... 18
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B.
Even Assuming Arguendo that the Incapacitation from Sexual
Reassignment Surgery Cannot Meet the Low Bar of a Serious Medical
Condition, the Individual Aspects of Ms. Rite’s Battle with Gender
Dysphoria Constitute a Serious Health Condition Under the FMLA................... 22
C.
As a Matter of Policy, Restricting Transsexual Access to Employment
Benefit and FMLA Protection is Tantamount to Banning Their Freedom
of Gender Expression and Autonomy................................................................... 25
CONCLUSION.............................................................................................................................. 27
APPENDIX A …………………………………………………………………………………. A-1
APPENDIX B ………………………………………………………………………………….. B-1
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TABLE OF AUTHORITIES
United States Supreme Court Cases:
Coleman v. Court of Appeals,
132 S. Ct. 1327 (2012)............................................................................................................ 17
Faragher v. City of Boca Raton,
524 U.S. 775 (1998).................................................................................................................. 9
Griggs v. Duke Power Co.,
401 U.S. 424 (1971)........................................................................................................ 2, 7, 11
Harris v. Forklift Sys.,
510 U.S. 17 (1993).............................................................................................................. 9, 15
Mastro Plastics Corp v. NLRB,
350 U.S. 270 (1956)................................................................................................................ 10
Meritor Savings Bank, FSB v. Vinson,
477 U.S. 57 (1986).............................................................................................................. 9, 15
McDonnel Douglas Corp. v. Green,
411 U.S. 792 (1973)............................................................................................................ 2, 11
Nev. Dep’t of Human Res. v. Hibbs,
538 U.S. 721 (2003)................................................................................................................ 19
Oncale v. Sundowner,
523 U.S. 75 (1998)................................................................................................................ 8, 9
Price Waterhouse v. Hopkins,
490 U.S. 228 (1989)......................................................................................................... passim
Richards v. United States,
369 U.S. 1 (1962)................................................................................................................ 9, 10
Tx. Dep’t of Cmty. Affairs v. Burdine,
450 U.S. 248 (1981).......................................................................................................... 10, 11
Walsh v. Glucksberg,
521 U.S. 702 (1997)................................................................................................................ 16
W. Va Univ. Hosps v. Casey,
499 U.S. 83 (1991).................................................................................................................... 9
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United States Circuit Court of Appeals Cases:
Barker v. Rooms to go Furniture Corp.,
375 Fed. Appx. 966 (11th Cir. 2010)...................................................................................... 20
Barnes v. Costle,
561 F.2d 983 (D.C. Cir. 1977)................................................................................................ 10
Costa v. Desert Palace,
299 F.3d 838 (9th Cir. 2002).................................................................................................... 2
Glenn v. Brumby,
663 F.3d 1312 (11th Cir 2011)................................................................................... 6, 7, 8, 11
Maggert v. Hanks,
131 F.3d 670 (7th Cir. 1997).................................................................................................. 18
Meriwether v. Faulkner,
821 F.2d 408 (7th Cir. 1984).................................................................................................. 18
Nguyen v. City of Cleveland,
229 F.3d 559 (6th Cir. 2000).................................................................................................. 11
Rite v. Beetz, Inc.,
575 F.3d 185 (13th Cir. 2015)............................................................................................ v, 12
Roche v. St. Lukes Shawnee Mission Health Sys.,
46 Fed. Appx. 867 (8th Cir. 2002)...........................................................................................19
Santiago v. DOT,
50 F. Supp. 3d 136 (2nd Cir. 2014)........................................................................................ 21
Schwenk v. Hartford,
204 F.3d 1187 (9th Cir. 2000).............................................................................................. 7, 8
Smith v. City of Salem,
378 F.3d 566 (6th Cir. 2004)........................................................................................... passim
Sommers v. Budget Mktg., Inc.,
667 F.2d 748 (8th Cir. 1982).................................................................................................... 6
Ulane v. E. Airlines, Inc.,
742 F. 2d 1081 (7th Cir. 1984)........................................................................................... 6, 18
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United States District Court Cases:
Barron v. Runyon,
11 F. Supp. 2d 676 (E.D. Va. 1998)....................................................................................... 23
Basso v. Potter,
596 F. Supp. 2d 324 (D. Conn. 2009)............................................................................... 17, 18
Bauer v. Dayton-Walther Corp.,
910 F. Supp. 306 (E.D. Ky. 1996).......................................................................................... 19
Brohm v. JH Props,
947 F. Supp. 299 (W.D. Ky. 1996)......................................................................................... 19
Darboe v. Staples, Inc.,
243 F. Supp. 2d 5 (S.D.N.Y 2003)......................................................................................... 19
EEOC v. R.G. & G.R. Harris Funeral Homes, Inc.,
100 F Supp. 3d 594 (E.D. Mich. 2015)..................................................................................... 6
Hopkins v. Price Waterhouse,
618 F. Supp. 1109 (D.D.C 1985).............................................................................................. 5
Kaynor v. Fannin Regional Hosp.,
946 F. Supp. 988 (N.D. Ga 1997)........................................................................................... 21
Lewis v. Boehringer Ingelheim Pharms., Inc.,
79 F. Supp. 394 (D. Conn. 2015)............................................................................................ 19
Mora v. Chem-Tronics, Inc.,
16 F. Supp. 2d 1192 (S.D. Cal 1998)...................................................................................... 21
Rite v. Beetz, Inc.,
585 F. Supp. 3d 1 (S.D. Wgr. 2015)................................................................................... v, 12
Schroer v. Billington,
577 F. Supp. 2d 293 (D.D.C. 2008)........................................................................................ 15
State Court Cases:
Comm’n on Human Rights & Opportunities v. Sullivan,
939 A.2d 541 (Conn. 2008)...................................................................................................... 3
Enriquez v. West Jersey Health Systems,
777 A.2d 365 (N.J. 2001)................................................................................................ passim
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Lie v. Sky Publ’g Corp.,
Mass Super. Lexis 402 (Mass. Super. Ct. 2002)....................................................................... 5
Constitutional and Statutory Authorities:
29 C.F.R. § 825.203(a).................................................................................................................. 23
29 C.F.R. § 825.203(d)................................................................................................................. 21
29 C.F.R. § 825.113........................................................................................................................ v
29 C.F.R. § 825.113 (a)................................................................................................................. 22
29 C.F.R. § 825.113(b)................................................................................................................. 20
29 C.F.R. § 825.113(e).................................................................................................................. 22
29 C.F.R. § 825.114........................................................................................................................ v
29 C.F.R. § 825.115........................................................................................................................ v
29 C.F.R. § 825.115(c).................................................................................................................. 21
29 C.F.R. § 825.115(d) ................................................................................................................ 22
29 C.F.R. § 825.115(e)(2) ............................................................................................................ 21
29 C.F.R. § 825.220(c).................................................................................................................. 17
29 C.F.R. § 825.1139(c)................................................................................................................ 18
29 C.F.R. § 2611 (11) ...................................................................................................... 17, 18, 20
29 U.S.C.S. § 2601....................................................................................................................... 17
29 U.S.C. § 2612(a)(1) (1964)...................................................................................................... 17
29 U.S.C. § 2612(a)(1)(D) (1964).................................................................................................. v
29 U.S.C. § 2612(b)(1)................................................................................................................. 21
29 U.S.C.S. § 2613(a)................................................................................................................... 19
29 U.S.C.S. § 2615(a)................................................................................................................... 17
42 U.S.C. § 2000e-2(a) (1964)................................................................................................ v, 2, 8
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42 U.S.C. § 2000e-2(a)(2) (1964)................................................................................................. 10
42 U.S.C. § 2000e-2(m) (1964)...................................................................................................... 2
Congressional Record:
H.R. 3185, 114th Cong. (1st Sess. 2015)........................................................................................ 7
Administrative Agencies:
Macy v. Holder,
2012 EEOPUB LEXIS 1181 (E.E.O.C. 2012)…………………………………………….… 7
Secondary Sources:
American Psychiatric Association, Diagnostic and Statistical Manual
of Mental Disorders,
American Psychiatric Ass’n et. al. eds., 5th ed. 2013............................................................. 14
Anastasia Niedrich, Removing Categorical Constraints on Equal Employment Opportunities and
Anti-Discrimination Protections,
18 Mich. J. Gender & L. 25 (2011)........................................................................................... 7
Ilona M. Turner, Sex Stereotyping Per Se: Transgender Employees and Title VII,
95 Cal. L. Rev. 561 (2007)....................................................................................................... 6
Kyle Knight, Rights in Transition: Making Legal Recognition for Transgender
People a Global Priority,
January 30, 2016, https://www.hrw.org/world-report/2016/rights-in-transition ..............23, 24
Kristine Holt, Reevaluating Holloway: Title VII, Equal Protection, and the Evolution of a
Transgender Jurisprudence,
70 Temp. L. Rev. 283 (1997)............................................................................................ 14, 15
Dr. L. Gooren, An Appraisal of endocrine theories of homosexuality and gender dysphoria,
Handbook of Sexology vol. 6 (1988)...................................................................................... 15
Pamela Papish, Homosexual Harassment or Heterosexual Horseplay? The False Dichotomy of
Same-Sex Sexual Harassment Law,
28 Colum. Human Rights L. Rev. 201 (1996)........................................................................ 13
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 (2000) ……………………………………………….. 26
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Richard Posner, Sex and Reason,
(Harvard Univ. Press 1st ed. 1992)........................................................................................... 3
Scott Bauer, Wisconsin Republicans Defend Transgender Restrictions Bill
Associated Press, November 19, 2015.................................................................................... 24
Taylor Flynn, Transforming the Debate: Why We Need to Include Transgender Rights in the
Struggles for Sex and Sexual Orientation Equality,
101 Colum. L. Rev. 392 (2001)................................................................................................ 5
U.S. Transgender: By the Numbers,
Times Union, December 5, 2011............................................................................................ 14
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OPINIONS BELOW
The decision of the United States District Court for the Southern District of Wagner,
granting Petitioner’s motion to dismiss, is reported at 585 F. Supp. 3d 1 (S.D. Wgr. 2015) and is
included in the record at pages 2-21. The decision of the Thirteenth Circuit Court of Appeals,
reversing the judgment of the District Court, is reported at 575 F.3d 185 (13th Cir. 2015) and is
included in the record at pages 22-30.
STATUTORY PROVISIONS INVOLVED
Adjudication of this case involves the interpretation of Section 703 of Title VII of the
Civil Rights Act. In addition, this case also reviews of the Family Medical Leave Act. The text of
both provisions is contained in the Appendices.
STATEMENT OF THE CASE
This lawsuit is brought under Title VII of the Civil Rights Act of 1964 (“Title VII”) and
the Family Medical Leave Act of 1993 (“FMLA”). R. 2. Respondent, Erika Rite (“Rite”), was
born male in Trippington, Iowa and given the name Eric Rite at birth. R. 3. After struggling with
extreme confusion over her gender identity throughout her adolescent years, she decided to leave
Trippington after graduating high school in 2002. R. 3. This decision was attributed to her
concerns that the people in her hometown would not accept her gender identity. R. 3.
After leaving Iowa, Rite moved to a city known for its diverse population and liberal
perspective, Kompton, Wagner. R. 3. Although she felt more welcome in Kompton she
continued to identify as male and use her birth name, Eric, despite feeling uncomfortable
identifying as a man. R. 3. After arriving in Kompton, she began pursuing a degree from Wagner
State University where she went on to earn a Master’s degree in Business Administration
(“MBA”) with a concentration in marketing. R. 3. After obtaining her MBA in 2005, she was
hired as a sales consultant by Petitioner, Beetz, Inc. (“Beetz”), a top developer, producer, and
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distributor of audio output devices. R. 3-4. Beetz was established by Andre Young, a talented
and creative musician who had worked hard to create and maintain a sophisticated image for
Beetz. R. 4. Andre Young was, at all relevant times, the CEO of Beetz. R. 4.
Rite thrived in her position as a sales consultant with Beetz and developed a strong
rapport and trust with Beetz investors. R. 4. On many occasions, investors preferred to meet with
her to discuss advertisement and business decisions, rather than meet with other sales consultants
within the company. R. 4. It was not long until she was promoted to Lead Sales Consultant for
developing the most innovative brands and generating the highest sales numbers for Beetz
products. R. 4.
In 2007, O’Shay Jackson started working as a sales consultant for Beetz as well. R. 6.
Like Rite, O’Shay also graduated with an MBA, although with a concentration in finance. R. 6.
O’Shay did not perform as strongly as Rite, but he did design a few brands for Beetz and
performed exceptionally with a small group of investors. R. 6. Although O’Shay was regarded as
a good employee, it was noted on his 2013 evaluation that he was “occasionally not thorough
enough with data entry” and that he had been involved in a verbal altercation with his co-worker.
R. 32.
Rite soon became depressed, despite her success, because of her continued suppression of
her desire to identify as female. R. 4. This was even noticed by her superiors who noted on her
2013 evaluation that she appeared “distracted and distraught.” R. 31. She spent many nights
trying to reconcile the disharmony between her presentation as a male and her desire to identify
as female. R. 4. This depression led her to consult psychotherapist Dr. Warren Gee (“Dr. Gee”)
in December 2012 about her anxiety and discomfort with her gender identify. R. 4. After a few
weeks of discussing her discomfort identifying as a male, Dr. Gee diagnosed her with gender
dysphoria. R. 4. Gender dysphoria is characterized by a strong desire to outwardly present the
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correct gender identity. R. 5. Individuals experiencing gender dysphoria frequently suffer from
anxiety and depression and have a tendency to withdraw from social interaction. R. 5.
In January 2013, she began to identify as transgender and after numerous visits with Dr.
Gee, Rite’s mental condition improved significantly. R. 5. She also began taking medication
during this time to combat her anxiety and depression. R. 5. Over the next year, Rite seriously
considered transitioning and researched various treatment options with Dr. Gee. R. 5. After
careful consideration, Rite decided to undergo gender reassignment surgery and promptly began
saving for the procedure. R. 5. Rite also began hormone replacement therapy to help with the
transition in her physical appearance and emotional stability. R. 5. The changes in physical
appearance included slowed body and facial hair growth, breast growth, and decreased muscle
mass. R. 6. Rite was informed by Dr. Gee that she would continue to experience physical
changes over the next two years, at which point she would be allowed to undergo gender
reassignment surgery. R. 6.
In November 2013, Andre Young announced that the former Executive Director had
recently retired and that he planned to promote a sales consultant to fill the position. R. 6. The
person selected would receive a substantial pay raise and become the primary point-of-contact
for all Beetz’s sales and distribution ventures. R. 6. Young decided to promote from within the
company and hoped to find someone who (1) had worked with 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. 6. Young considered Rite and O’Shay Jackson to be his top
candidates for the job. R. 6.
Young interviewed both Rite and Jackson for the Executive Director position and Rite
believed her interview went well. R. 7. At the end of her interview, Rite fully disclosed to Young
that she now identified as female, was receiving hormone treatment, and if all went well, she
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planned to undergo gender reassignment surgery by the end of 2014. R. 7. She informed Young
that after the surgery, she would prefer to be called Erika. R. 7. Young did not say much in
response to this news, but thanked Rite for her honesty before ending the interview. R. 7.
One month after her interview, Rite began presenting herself as a woman while at work
R. 7. She started wearing professional female attire to work, let her hair grow out, painted her
nails, and wore makeup. R. 7. Rite received a mixed reaction from the Sales Department; some
supported her decision while others scorned her. R. 7. Despite this, she continued to do
exceptional work while at Beetz. R. 7. Many of the investors supported Rite’s decision, and no
investor pulled financial support from Beetz upon learning about her decision to be identified as
female. R. 7.
In February 2014, Young announced his decision to promote O’Shay Jackson to
Executive Distributor citing his extraordinary skill and performance. R. 7. Even though Rite was
disappointed by Young’s decision, she graciously congratulated Jackson and continued working
as the lead sales consultant. R. 7. A week later, Rite was transferred to the Graphic Design
Department where she would start working as a graphic designer. R. 8. Young informed her that
“Beetz takes great pride in its image” and that he thought it was in Beetz’s best interest to
transfer her to a department with “less public visibility.” R. 8. Although she continued to receive
the same salary, she had very little contact with other employees and her only contact with
investors was via email or telephone. R. 8. Rite was very upset by this transfer and believed she
was being discriminated against because of identity as transgender. R. 8.
Shortly after this transfer, Dr. Gee referred Rite to Dr. Romel Dreigh (“Dr. Dreigh”)
having determined she was ready for gender reassignment surgery. R. 8. After being approved
for the surgery, Rite approached Tamika Woods (“Woods”), the Director of Human Resources,
to discuss her plan to undergo gender reassignment surgery and the company’s policy on medical
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leave. R. 8. Rite was referred to the company handbook for information on medical leave. R. 8.
On November 1, 2014, Rite applied for FMLA leave having exhausted most of her paid sick
days on hormone therapy with Dr. Gee. R. 8. Dr. Dreigh filled out the appropriate medical
certification and Rite submitted it to Woods on November 8, 2014. R. 8. On November 13, 2014,
Rite contacted Woods to inquire about her pending application and was informed that, due to the
unprecedented nature of her request, her FMLA leave application had been referred to senior
management. R. 8. Concerned by this news, Rite contacted Young who informed her that the
matter was being referred to Beetz’s legal department, but she should not be worried about this
and that she would be contacted soon, although he did not give an exact date. R. 8-9. Confident
that her application would be approved, she chose to move forward with the gender reassignment
surgery. R. 9.
On January 30, 2015, Rite underwent gender reassignment surgery, as well as further
surgery to “feminize” her features. R. 9. After her surgery, Rite was instructed to stay in bed for
at least one more week and that she would be able to return to her daily activities within one to
two weeks after surgery. R. 9. Dr. Dreigh further warned her to avoid strenuous activity for three
to four weeks after surgery so as to not disrupt the healing process. R. 9. Rite planned to return to
work on March 6, 2015. R. 9. On February 1, 2015, Woods left a voicemail for Rite informing
her that her FMLA leave had been denied and any additional leave would result in disciplinary
action. R. 9. Due to her bedridden state, Rite did not have a chance to review the message until
February 8, 2015. R. 9. On February 27, 2015 Woods called Rite to inform her that she had been
terminated due to her absence. R. 9.
On March 13, 2015, Rite filed a complaint with the Equal Employment Opportunity
Commission (“EEOC”) alleging that Beetz had engaged in sex discrimination on the basis of her
transgender identity. R. 9. After investigating her claim, the EEOC determined that Rite met the
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prima facie threshold in alleging sex discrimination under Title VII and issued her a Right to Sue
notification. R. 10. On April 3, 2015, Rite filed a suit against Beetz in the Wagner District Court,
claiming a violation of both Title VII and the FMLA. R. 10. On August 5, 2015, the Wagner
District Court ruled that Rite was not entitled to relief under Title VII or the FMLA and granted
Beetz’s motion to dismiss on both claims. R. 21. Rite appealed this decision and on December
11, 2015, the Thirteenth Circuit Court of Appeals reversed the decision of the Wagner District
Court on both claims and remanded the case for proceedings consistent with their opinion. R. 30.
This Court has now granted certiorari in response to Beetz’s appeal to address Erika Rite’s Title
VII and FMLA claims. R. 40.
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SUMMARY OF THE ARGUMENT
Erika Rite, as a transgender employee, is protected from workplace discrimination
under Title VII on the basis of gender. The language and evolving nature of Title VII
shows that its protection against sex discrimination extends to transgender employees
because of gender. This is true for two reasons. First, transgender discrimination is so
closely related to sex discrimination that excluding it from the meaning of sex
discrimination would severely limit the power of title VII. Second, the plain language of
Title VII does not limit protection to biological sex discrimination. Also, the actual
actions of the Petitioner constitute unlawful sex discrimination under Title VII. Finally,
excluding transgender employees from Title VII protection exposes them to a windfall of
discriminatory practices and promotes a hostile work environment for employees that do
not conform to traditional gender stereotypes. For these reasons, Erika Rite is protected
against employment discrimination under Title VII.
Moreover, gender dysphoria qualifies as a serious medical condition under the
Family Medical Leave Act (“FMLA”) where the medical symptoms and treatment force a
victim to undergo extensive medical treatment. Ms. Rite’s diagnosis and surgical
treatment of gender dysphoria exceeds the minimal requirements set forth by congress to
be considered a serious health condition under the FMLA. Furthermore, even assuming
arguendo that the incapacitation from sexual reassignment surgery cannot meet the low
bar of a serious medical condition, the individual aspects of Ms. Rite’s battle with gender
dysphoria constitute a serious health condition under the FMLA. Also, as a matter of
policy, restricting transsexual access to employment benefits and FMLA protection is
tantamount to banning their freedom of gender expression and autonomy. Because of the
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reasons above, Erika Rite’s diagnosis of gender dysphoria qualifies as a serious medical
condition under the FMLA.
Thus, this Court should affirm the Thirteenth Circuit Court of Appeals’
judgment and remand this case for further proceedings, consistent with their ruling.
ARGUMENT
I.
A TRANSGENDER EMPLOYEE IS PROTECTED FROM
EMPLOYMENT DISCRIMINATION UNDER TITLE VII OF THE CIVIL
RIGHTS ACT OF 1964
The Thirteenth Circuit Court of Appeals correctly held that an individual that
identifies as transgender may not be discriminated against on the basis of their gender
identity under Title VII, and that decision should be affirmed. Title VII of the Civil
Rights Act of 1964 (“Title VII”) states that it “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. § 2000e-2(a) (1964).
Title VII also sets out that “an unlawful employment practice is established when the
complaining party demonstrates that race, color, religion, sex, or national origin was a
motivating factor for any employment practice, even though other factors also motivated
the practice.” 42 U.S.C. § 2000e-2(m) (1964). A “plaintiff in any Title VII case may
establish a violation through a preponderance of evidence (whether direct or
circumstantial) that a protected characteristic played ‘a motivating factor.’” Costa v.
Desert Palace, 299 F.3d 838, 853-854 (9th Cir. 2002). The purpose of Title VII “is the
removal of artificial, arbitrary, and unnecessary barriers to employment when the barriers
operate invidiously to discriminate on the basis of racial or other impermissible
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classification.” Griggs v. Duke Power Co., 401 U.S. 424, 431 (1971). At its broadest
view, Title VII’s goal “is efficient and trustworthy workmanship assured through fair …
employment and personnel decisions.” McDonnell Douglas Corp. v. Green, 411 U.S.
792, 801 (1973). This interest extends to gender issues as well as others. As Justice
Brennan wrote, “Congress’ intent to forbid employers to take gender into account in
making employment decisions appears on the face of the statute.” Price Waterhouse v.
Hopkins, 490 U.S. 228, 239 (1989). He went on to write that “Title VII even forbids
employers to make gender an indirect stumbling block to employment opportunities.” Id.
at 242.
In order to meet the prima facie standard for discrimination, the employee must
show: “(1) [she] is a member of a protected class; (2) applied for and was qualified for
the benefit or position; (3) suffered an adverse action by the defendant; and (4) the
adverse action occurred under circumstances giving rise to an inference of
discrimination.” Comm’n on Human Rights & Opportunities v. Sullivan, 939 A.2d 541,
554 (Conn. 2008). The only factors at issue here is the first and the fourth; whether or not
Respondent is a member of a protected class, and whether the adverse action gives rise to
an inference of discrimination. While biological sex is an important issue, Title VII’s
protection of sex discrimination extends to gender issues as well. As Judge Posner has
illustrated, gender is simply a term “borrowed from grammar to designate the sexes as
viewed as social rather than biological classes.” Richard A. Posner, Sex and Reason, 1,
24-25 (1992). Title VII is meant to protect employees from being discriminated against
when they don’t conform to the traditional ideas of “masculinity” or “femininity,”
whether through their actions or appearance. Price Waterhouse, 490 U.S. at 258. Justice
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Brennan said it best, “[Title VII] does not purport to limit the other qualities and
characteristics that employers may take into account in making employment decisions.”
Id. at 239.
For that reason, the Thirteenth Circuit correctly found that Respondent’s decision
to identify as female is protected by Title VII. That court correctly interpreted Title VII’s
protection against sex discrimination to include transgender employees. Furthermore,
under this appropriate standard, Petitioner’s actions constituted unlawful discrimination
under Title VII. Finally, as a matter of policy, excluding transgender employees from
Title VII protection exposes them to a windfall of discriminatory practices and promotes
hostile work environments for employees that do not conform to traditional gender
stereotypes. For all these reasons, a transgender employee is protected under Title VII of
the Civil Rights Act, and this Court should affirm the decision of the Thirteenth Circuit
Court of Appeals.
A. The Language and Evolving Nature of Title VII Shows That Its
Protection Against Sex Discrimination Extends to Transgender
Employees
When Title VII was enacted in 1964, it was clearly the intent of the legislature to
allow for an evolving definition of sex discrimination which now includes transgender
discrimination for two reasons. First, transgender discrimination is very closely related to
sex discrimination, which is in the plain language of Title VII. Excluding this type of
discrimination from the meaning of sex discrimination would severely limit the power of
Title VII. Second, nowhere in the plain language of Title VII is the intent to limit it to
biological sex discrimination evidenced. As a result, this Court should include
transgender discrimination as a form of discrimination protected under Title VII.
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1. Transgender Discrimination is so Closely Related to Sex Discrimination
That Excluding It from the Meaning of Sex Discrimination Would
Severely Limit the Power of Title VII
As this Court has already established, an employer cannot take adverse action
against a male employee because he acts feminine or a female employee because she acts
masculine. Price Waterhouse, 490 U.S. at 258. The state is similarly prohibited from
taking adverse action against an employee who wishes to identify as the opposite sex.
This is because biological sex is the basis for gender and transgender discrimination since
“the discrimination would not occur but for the victim’s sex.” Smith v. City of Salem, 378
F.3d 566, 574 (6th Cir. 2004). By holding that Title VII covers men and women who do
not adhere to the social expectations of how they should look and behave, the Supreme
Court made clear “that Title VII’s reference to ‘sex’ encompasses both the biological
differences between men and women, and gender discrimination, that is, discrimination
based on a failure to conform to stereotypical gender norms.” Id. at 573.
Title VII’s applicability to gender discrimination was unsettled until 1989 when
the Supreme Court decided Price Waterhouse. Price Waterhouse, 490 U.S. 228. There,
this Court examined a situation where a woman in an accounting firm was denied a
position as a partner and was advised to “walk more femininely, talk more femininely,
dress more femininely, wear make-up, have her hair styled, and wear jewelry.” Hopkins
v. Price Waterhouse, 618 F. Supp. 1109, 1117 (D.D.C. 1985). While this Court ultimately
did not decide the case1, it did determine that gender discrimination was covered under
Title VII. Price Waterhouse, 490 U.S. at 245. In ruling, this Court made it clear that when
“an employer ignored the attributes enumerated in the statute, Congress hoped, it
1
The case was remanded to the lower court for further proceedings.
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naturally would focus on the qualifications of the applicant or employee.” Id. at 243. This
Court stated that Congress’ intent “is the theme of a good deal of the statute’s legislative
history.” Id.
In including gender discrimination, Title VII should also cover transgender
discrimination. Gender is “whether a person has qualities that society considers
masculine or feminine,” Enriquez v. West Jersey Health Systems, 777 A.2d 365, 371 (N.J.
2001) (citing Taylor Flynn, Transforming the Debate: Why We Need to Include
Transgender Rights in the Struggles for Sex and Sexual Orientation Equality, 101 Colum.
L. Rev. 392, 394 (2001)), and transsexualism “is best understood as an issue of gender
identity.” Lie v. Sky Publ'g Corp., 2002 Mass. Super. LEXIS 402, *22 (Mass. Super. Ct.
2002). Any discrimination against “a plaintiff who is a transsexual - and therefore fails to
act and/or identify with his or her gender - is no different from the discrimination directed
against Ann Hopkins in Price Waterhouse, who, in sex-stereotypical terms, did not act
like a woman.” Smith, 378 F.3d at 575. Just as gender discrimination is another form of
sex discrimination, transgender discrimination is another form of gender discrimination.
We are “beyond the day when an employer could evaluate employees by assuming or
insisting that they matched the stereotype associated with their group.” EEOC v. R.G. &
G.R. Harris Funeral Homes, Inc., 100 F. Supp. 3d 594, 600 (E.D. Mich. 2015) (citing
Price Waterhouse, 490 U.S. at 251). The “very acts that define transgender people as
transgender are those that contradict stereotypes of gender-appropriate appearance and
behavior.” Ilona M. Turner, Sex Stereotyping Per Se: Transgender Employees and Title
VII, 95 Cal. L. Rev. 561, 563 (2007). The Sixth Circuit correctly reasoned that
“employers who discriminate against men because they do wear dresses and makeup, or
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otherwise act femininely, are also engaging in sex discrimination, because the
discrimination would not occur but for the victim’s sex.” Smith, 378 F.3d at 574. As the
superior court of New Jersey said, a “person who is discriminated against because he
changes his gender from male to female is being discriminated against because he or she
is a member of a very small minority whose condition remains incomprehensible to most
individuals.” Enriquez, 777 A.2d at 372.
Petitioner now argues that transgender employees should not be a protected class
under Title VII because it is not a form of sex discrimination. This argument is faulty
however, because “all persons, whether transgender or not, are protected from
discrimination on the basis of gender stereotype.” Glenn v. Brumby, 663 F.3d 1312, 1318
(11th Cir. 2011). A “label, such as ‘transsexual,’ is not fatal to a sex discrimination claim
where the victim has suffered discrimination because of his or her gender nonconformity.” Smith, 378 F.3d at 575. Petitioners here cite to the Seventh Circuit case of
Ulane v. E. Airlines, Inc., 742 F.2d 1081 (7th Cir. 1984), and the Eighth Circuit case of
Sommers v. Budget Mktg., Inc., 667 F.2d 748 (8th Cir. 1982) to support their position that
sex discrimination does not encompass transgender employees. However, these decisions
came before Price Waterhouse, which held that gender issues were indeed protected in
the workplace. Price Waterhouse, 490 U.S. at 258. This is reflective of the evolving
nature of Title VII. As of recently, the EEOC has taken a firm stand on the issue of
transgender employment discrimination finding that Title VII does indeed protect this
type of discrimination. Macy v. Holder, 2012 EEOPUB LEXIS 1181, *36. In their
decision, the Commission cited many Circuit cases that were decided after the Price
Waterhouse decision. See Smith, 378 F.3d at 578 (holding that a transsexual firefighter
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was protected under Title VII based on gender issues); Glenn, 663 F.3d at 1321 (holding
that the termination of a transsexual employee of Georgia General Assembly's Office of
Legislative Counsel was a form of sex discrimination); Schwenk v. Hartford, 204 F.3d
1187, 1202 (9th Cir. 2000) (recognizing that employer discrimination against transgender
employee is “related to the sex of the victim”).
Furthermore, in June of last year, the Equality Act of 2015 came before Congress
which seeks to amend Title VII to include sexual orientation and gender identity. H.R.
3185, 114th Cong. (1st Sess. 2015). The fact that Congress is still considering the
Equality Act further reinforces the argument that Title VII is constantly evolving.
Allowing Title VII to remain stagnant and rigid would only encourage “discriminatory
employers’ and courts’ prejudices against transgender individuals by ratifying adverse
employment decisions made solely on the basis of an individual's transgender status.”
Anastasia Niedrich, Removing Categorical Constraints on Equal Employment
Opportunities and Anti-Discrimination Protections, 18 Mich. J. Gender & L. 25, 64
(2011).
Time and again this Court has made it clear that “discriminatory preference for
any group, minority or majority, is precisely and only what Congress has proscribed.”
Griggs, 401 U.S. at 431. That discriminatory preference is very apparent in this case. The
view of the Seventh, Eighth, and Tenth Circuits is far too constricted to accurately reflect
the true purpose Congress gave to Title VII, and does not accurately reflect this Court’s
ruling in the Price Waterhouse case. Enriquez, 777 A.2d at 372; See also Smith, 378 F.3d
at 573 (“the approach in Holloway, Sommers, and Ulane - and by the district court in this
case - has been eviscerated by Price Waterhouse”). Congress intended Title VII to be a
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powerful piece of legislation, meant to protect employees from primitive discrimination.
It was a statute that was meant to grow and become more powerful as the years passed, in
order to ensure that employees would not be subjected to a discriminatory workplace. As
this Court has clearly stated in the past, “statutory prohibitions often go beyond the
principal evil to cover reasonably comparable evils, and it is ultimately the provisions of
our laws … by which we are governed.” Oncale v. Sundowner Offshore Servs., 523 U.S.
75, 79 (1998). Narrowing the power of Title VII would only be doing a disservice to the
people it was meant to protect.
In sum, Title VII was not meant to be a boilerplate statute with a narrow
interpretation, it was meant to evolve to reflect our views as a society. This is apparent by
this Court’s inclusion of gender discrimination in 1989 and the growing acceptance of
transgender employee’s inclusion in Title VII among the various Circuits. See Price, 490
U.S. 228; Smith, 378 F.3d 566; Glenn, 663 F.3d, 1312; Schwenk, 204 F.3d 1187. On the
other hand, many of the cases Petitioner uses are outdated and are not a true reflection
with our societal views. In the case at hand, it would be an impermissible act to exclude
transgender employees from the protection of Title VII.
2. The Plain Language of Title VII Does Not Limit Protection to Biological
Sex Discrimination
While Title VII only states that it covers “race, color, religion, sex, or national
origin,” 42 U.S.C. § 2000e-2(a), nothing in the statute indicates Congress’ intent to
narrowly limit it to these five categories. In fact, the legislative history and the expanding
role of Title VII indicate quite the opposite approach. For instance, this Court has
expanded the definition of “race discrimination” to include discrimination between
members of the same race. Oncale, 523 U.S. at 78. This Court has also expanded the
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protection of Title VII by holding that an employer could be vicariously liable under Title
VII for a work environment caused by a supervisor. Faragher v. City of Boca Raton, 524
U.S. 775, 810 (1998). Where a statutory term “is ambiguous, [the members of this Court]
construe it to contain that permissible meaning which fits most logically and comfortably
into the body of both previously and subsequently enacted law.” W. Va. Univ. Hosps. v.
Casey, 499 U.S. 83, 100 (1991).
Throughout the years, the courts have also come to realize that limiting sex
discrimination to biological sex would not only be an insult to the creators of Title VII, it
would leave those employees that are similarly situated to Erika Rite with no protection
from discrimination. This Court specifically has recognized this frightening fact and
warned 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 in employment.’” Id. (citing Meritor Savings Bank, FSB v.
Vinson, 477 U.S. 57, 64 (1986)). Clearly, Title VII was meant to protect against
discrimination in general, not just certain types of people who fall into specific
categories. In the words of Justice O’Connor, “[w]hen the workplace is permeated with
discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to
alter the conditions of the victim’s employment and create an abusive working
environment, Title VII is violated.” Harris v. Forklift Sys., 510 U.S. 17, 21 (1993).
Generally, a court must look to the intent of the legislation to properly interpret a
statute. It is a fundamental truth “that a section of a statute should not be read in
isolation.” Richards v. United States, 369 U.S. 1, 11 (1962). As this Court has already
made clear, “in interpreting legislation, ‘[this Court] must not be guided by a single
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sentence or member of a sentence, but [should] look to the provisions of the whole law,
and to its object and policy.’” Id. (citing Mastro Plastics Corp. v. NLRB, 350 U.S. 270,
285 (1956)). The object and policy of Title VII is “to drive employers to focus on
qualifications.” Price Waterhouse, 490 U.S. at 243. This “is the theme of a good deal of
[Title VII’s] legislative history.” Id.
This Court and others have recognized that Title VII was not meant to have a
limited meaning. Title VII makes it clear that an employer may not “limit, segregate, or
classify his employees or applicants for employment in any way which would deprive or
tend to deprive any individual of employment opportunities or otherwise adversely affect
his status as an employee, because of such individual’s . . . sex.” 42 U. S. C. §§ 2000e2(a)(2) (emphasis added). This Court has already said that “to construe the words
‘because of’ as colloquial shorthand for ‘but-for causation’ … is to misunderstand them.”
Price Waterhouse, 490 U.S. at 240. Courts have “consistently recognized that Title VII
must be construed liberally to achieve its objectives.” Barnes v. Costle, 561 F.2d 983,
994 (D.C. Cir. 1977). Title VII “requires an interpretation animated by the broad
humanitarian and remedial purposes underlying the federal proscription of employment
discrimination.” Id. In other words, not only does nothing in Title VII indicate that it was
meant to be limited, but the history of interpreting Title VII actually indicates that it was
meant to be expansive.
B. The Actions of Petitioner Constitute Unlawful Sex Discrimination Under
Title VII
In a Title VII case, “the plaintiff has the burden of proving by the preponderance
of the evidence a prima facie case of discrimination.” Tex. Dep't of Cmty. Affairs v.
Burdine, 450 U.S. 248, 252-253 (1981). The “prima facie case serves an important
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function in the litigation: it eliminates the most common nondiscriminatory reasons for
the plaintiff's rejection.” Id. at 253-54. In order to meet this burden, “the plaintiff must
prove by a preponderance of the evidence that she applied for an available position for
which she was qualified, but was rejected under circumstances which give rise to an
inference of unlawful discrimination.” Id. The plaintiff must also show that “the
defendant took an employment action adverse to [her]” and that “there was a causal
connection between the protected activity and the adverse employment action.” Smith,
378 F.3d at 570. Although “no one factor is dispositive in establishing a causal
connection, evidence . . . that the adverse action was taken shortly after the plaintiff's
exercise of protected rights is relevant to causation.” Nguyen v. City of Cleveland, 229
F.3d 559, 563 (6th Cir. 2000). Once the prima facie standard is met, the “burden then
must shift to the employer to articulate some legitimate, nondiscriminatory reason for the
employee's rejection.” McDonnell Douglas Corp., 411 U.S. at 802. While it is true that
“the Act does not command that any person be hired simply because he was formerly the
subject of discrimination, or because he is a member of a minority group,” barriers that
“operate invidiously to discriminate on the basis of racial or other impermissible
classification” cannot stand. Griggs, 401 U.S. 430-31.
In a case that is similar to this, a plaintiff was fired from Georgia’s Office of
Legislative Counsel because her decision to express herself as a woman. Glenn, 663 F.3d
at 1314. Like Ms. Rite, the plaintiff there did not experience any adverse actions until she
disclosed the fact that she was in the process of transitioning to her supervisor. Id.
Plaintiff was eventually fired for her decision to transition because her supervisor found it
“inappropriate.” Id. However, the Eleventh Circuit ruled that the plaintiff’s actions were a
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form of sex discrimination and ruled in her favor.2 Id. at 1321. The logic of the Eleventh
Circuit Court is sound and represents the true purpose of Title VII.
It is no secret that “Beetz considered every aspect of Rite’s performance to be
exceptional and ideal for a higher executive position.” Rite v. Beetz, Inc., 575 F.3d 185,
190 (13th Cir. 2015). Ms. Rite had “diligently worked for Beetz for ten years, where she
has excelled at her duties.” Id. She not only maintained a strong relationship with her
clients, she also turned out the highest sales numbers and developed the most innovative
brands. R. 4. Clearly her body of work speaks for itself. Not only was Ms. Rite very
qualified for the position of Executive Distributor, she may have actually been the most
qualified candidate. However, Petitioner did not promote her simply because of her
transgender identity. The court below correctly identified that it “was not until Rite
started expressing herself as a woman that Beetz’s CEO, Young, retreated from Rite.”
Rite, 575 F.3d at 190. Young even went as far as telling her that “because ‘Beetz takes
great pride in its image,’ he thought it was in the company’s best interest to relocate her
to another department with ‘less public visibility.’” Rite, 585 F. Supp. 3d 1, 8 (S.D. Wgr.
2015). The Thirteenth Circuit said it best, “just as Rite was finding a bit of happiness,
Beetz showered her in shame and attempted to hide her in a department where she would
no longer interact with clients or investors in person and would rarely be seen by coworkers.” Rite, 575 F.3d at 190-91. There should be no question here that the actions of
Petitioner and its agents gave rise to a strong inference of unlawful discrimination and
thus, Ms. Rite has met her burden.
Furthermore, it is impossible for Petitioner to show that there was a legitimate,
2
This case was filed under the Equal Protection Clause, but the court recognized that the plaintiff would
have been successful had she filed suit under Title VII. Glenn, 663 F.3d at 1321.
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nondiscriminatory reason for the rejecting Ms. Rite. Petitioner’s decision could not have
been based on Ms. Rite’s work product because even after she began her transition, “Rite
continued to do exceptional work.” Rite, 585 F. Supp. 3d at 7-8. Clearly, the reason Ms.
Rite was passed up was because of her decision to express herself as a woman. After
Young had made his decision not to promote Ms. Rite, he actually told her that she was
passed up was because Beetz took pride in their image, implying that her decision to
portray herself as a woman was the reason why she was not promoted. R. 7-8. However,
there was no recorded incident of Ms. Rite’s decision to transition affecting Petitioner’s
“image” at all. In fact, “many of the investor’s supported her decision” and “no investor
pulled financial support from Beetz upon learning of Rite’s transition.” Rite, 585 F. Supp.
3d at 7-8. Despite this, Petitioner still chose to hide Ms. Rite in the Graphic Design
Department, where she resided until she was terminated. Although she received the same
salary, she was isolated from the investors and her co-workers.
Thus, Ms. Rite easily meets her burden while Petitioner cannot meet its shifting
burden. It is abundantly clear that, not only was she very qualified for the position of
Executive Distributer, but she was rejected under circumstances which give rise to an
inference of unlawful discrimination. It is also not possible, based on the circumstances,
for Petitioners to show there was a nondiscriminatory reason for rejecting Ms. Rite.
Accordingly, Ms. Rite has shown that the actions of Petitioner constituted unlawful
sexual discrimination.
C. As a Matter of Policy, Excluding Transgender Employees from Title VII
Protection Exposes Them to a Windfall of Discriminatory Practices and
Promotes a Hostile Work Environments for Employees That Do Not
Conform to Traditional Gender Stereotypes
Finally, as a matter of policy, “refusing to consider the harassment of employees 14
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- whether they are gay, lesbian, bisexual, or do not conform to gendered norms -- by
heterosexual harassers actionable, courts create and reinforce stereotypical gender roles.”
Pamela Papish, Homosexual Harassment or Heterosexual Horseplay? The False
Dichotomy of Same-Sex Sexual Harassment Law, 28 Colum. Human Rights L. Rev. 201,
225 (1996) (emphasis added). By reinforcing these stereotypical gender roles, these same
courts indirectly promote prejudicial attitudes to those who do not conform. An employee
“who is discriminated against because he changes his gender from male to female is
being discriminated against because he or she is a member of a very small minority
whose condition remains incomprehensible to most individuals.” Enriquez, 777 A.2d at
372. This does not form an appropriate basis for employment discrimination. It is truly
frightening that certain courts “have applied the outdated statutory interpretation of
narrowly defining ‘sex’ solely to derogate transgendered persons’ civil rights and equal
protection guarantees under Title VII.” Kristine Holt, Reevaluating Holloway: Title VII,
Equal Protection, and the Evolution of a Transgender Jurisprudence, 70 Temp. L. Rev.
283, 286 (1997).
It is hardly a secret that transgender employees have far fewer protections than
non-transgender employees despite the fact that, as of 2009, there were nearly 700,000
transgender individuals in the U.S. Transgender: By the Numbers, Times Union,
December 5, 2011 (available at http://www.timesunion.com/local/article/Transgender-bythe-numbers-2342726.php). Excluding each one of these individuals from the protections
of Title VII would expose them to an untold amount of discrimination in the workplace.
Essentially, an employee wishing to identify as transgender would have to decide
between their career and their mental wellbeing. Employees, like Ms. Rite, diagnosed
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with gender dysphoria do not simply have a desire to identify as the other gender, they
have a need, which, if suppressed, will cause “clinically significant distress or
impairment in social, occupational, or other important areas of functioning.” American
Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders
(American Psychiatric Ass’n et al. eds., 5th ed. 2013). Furthermore, transsexualism “can
be accompanied by a profound sense of loathing for an individual’s primary and
secondary sexual characteristics, which is overwhelming and unalterable.” Enriquez, 777
A.2d at 376 (citing Dr. L. Gooren, An Appraisal of endocrine theories of homosexuality
and gender dysphoria, Handbook of Sexology vol. 6, 410-24 (Sitsen JMA, Amsterdam,
Elsevier Science Publishers 1988)). Clearly, these are not symptoms an employee should
have to suffer through every day just to remain employed.
No other class protected by Title VII faces as much scrutiny and debate as “sex
discrimination” does. Recent rulings indicate a trend in the right direction but there is still
work to be done. Even so, it is truly a shame that some “courts have allowed their focus
on the label ‘transsexual’ to blind them to the statutory language itself.” Schroer v.
Billington, 577 F. Supp. 2d 293, 307 (D.D.C. 2008). Especially considering that this
Court has already made it clear that it was Congress’ intent “‘to strike at the entire
spectrum of disparate treatment of men and women in employment,’ which includes
requiring people to work in a discriminatorily hostile or abusive environment.” Harris,
510 U.S. at 21 (citing Meritor Savings Bank, FSB, 477 U.S. at 64).
To exclude transgender employees from the meaning of Title VII would only
“legitimize discrimination based on the plaintiff's gender non-conformity by formalizing
the non-conformity into an ostensibly unprotected classification.” Smith, 378 F.3d at 574.
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The court below recognized that denying “summarily protection to an individual whose
‘condition has not yet become stationary’ is to deny her the right granted her nontransgendered brothers sisters: to present evidence in a Title VII claim that shows
‘treatment of a person in a manner which but for that person’s sex would be different.’”
Holt, supra, at 302-03. Here, Erika Rite is entitled to Title VII protection just as any other
employee who has experienced sex discrimination in the workplace. Accordingly, for the
above mentioned reasons, this Court should affirm the decision of the Thirteenth Circuit.
II.
GENDER DYSPHORIA QUALIFIES AS A SERIOUS MEDICAL
CONDITION UNDER THE FAMILY MEDICAL LEAVE ACT (FMLA)
WHERE THE MEDICAL SYMPTOMS AND TREATMENT FORCE A
VICTIM TO UNDERGO EXTENSIVE MEDICAL TREATMENT
The Thirteenth Circuit correctly held that gender dysphoria is a serious health
condition and would entitle those suffering from the disease to medical leave under the
Family Medical Leave Act (FMLA). R. 30. As such, Beetz, Inc. improperly terminated
Erika Rite after denying medical leave under the FMLA when she underwent gender
reassignment surgery to treat gender dysphoria. As Justice Souter cautioned, personal
medical decisions are “central to personal dignity and autonomy,” and are “the most
intimate and personal choices a person may make in a lifetime.” Walsh v. Glucksberg,
521 U.S. 702, 726 (1997).
Respondent Erika Rite respectfully requests that this court uphold the decision of
the Thirteenth Circuit Court of Appeals, which is correct for three reasons. First, Ms.
Rite’s diagnosis and treatment of gender dysphoria exceeds the minimal requirements set
forth by Congress to be considered a serious health condition under the FMLA. Next,
even assuming arguendo that gender dysphoria itself cannot meet the low bar of a serious
medical condition, the individual aspects of Ms. Rite’s battle with gender dysphoria
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constitute a serious health condition. Last, as a matter of Public Policy, restricting
transsexual access to employment benefits and FMLA protection is tantamount to
banning their freedom of gender expression and autonomy.
A. Ms. Rite’s Diagnosis and Surgical Treatment of Gender Dysphoria
Exceeds the Minimal Requirements Set Forth By Congress to be Considered
a Serious Health Condition Under the FMLA
To begin with, the Family Medical Leave Act of 1993 entitles “employees up to
12 work weeks of unpaid leave per year” when a “serious health condition interferes with
the employee’s ability to perform at work.” 29 U.S.C. § 2612(a)(1). Employers must
“grant unpaid leave for self-care for a serious medical condition.” 29 U.S.C.
§2612(a)(1); see also Coleman v. Court of Appeals, 132 S. Ct. 1327, 1332 (2012). Under
the FMLA a serious medical condition is any “illness, injury, impairment, or physical or
mental condition that involves (A) inpatient care in a hospital or (B) continuing treatment
by a health care provider.” 29 C.F.R. § 2611(11). In addition to providing a 12-week
period of medical leave, the act also provides “a certain amount of job security to
employees who are absent or take leave for a serious health condition or a chronic serious
health condition.” 29 U.S.C.S. § 2601; see also Basso v. Potter, 596 F. Supp. 2d 324 (D.
Conn. 2009). Specifically, the FMLA prohibits “an employer from discriminating against
an employee who has used FMLA leave or otherwise interfering with the exercise or
attempted exercise of FMLA rights.” 29 U.S.C.S. § 2615(a); see also 29 C.F.R. §
825.220(c).
The Department of Labor constructed a test to determine what can be considered
a serious health condition. 29 U.S.C.S. §§ 2601 et seq. An employee must: (1) have been
incapacitated for more than three days, (2) have been seen once by a doctor, and (3) have
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been prescribed a course of medication to qualify as a serious health condition. 29
U.S.C.S. §§ 2601 et seq. In the two years prior to the surgery, Ms. Rite underwent
extensive hormone replacement therapy to treat her gender dysphoria. R. 5. Finding that
to be insufficient, Ms. Rite then underwent an extensive surgical procedure at the hand of
her doctor that resulted in a weeklong incapacitation. The incapacitation, frequent doctor
appointments, and medication prescribed as part of the hormone replacement therapy thus
satisfy all three elements and therefore meet the Department of Labor test. R. 9.
Independent of the test, gender dysphoria qualifies as a serious medical condition
because it is a physical and mental condition that involves both inpatient care in a
hospital and continuing treatment by a healthcare provider as required under FMLA. 29
C.F.R. § 2611(11). The FMLA has an extremely low bar to reach when determining what
is considered a serious medical condition. In fact, the only conditions that are expressly
not considered serious medical conditions are “routine physical examinations, eye
examination or dental examinations.” 29 CFR § 825.1139(c); See also Basso v. Potter,
596 F. Supp. 2d 324, 338 (explaining that denial of designation of an ailment as a serious
medical condition is appropriate for “the common cold, the flu, ear aches, upset stomach,
minor ulcers, headaches, routine dental or orthodontia problems”). Ms. Rite’s treatment
far exceeded those that are expressly excluded serious medical conditions under the
FMLA. R. 5-7, 9. Gender dysphoria requires a long and deeply involved treatment
course that culminates in Sexual Reassignment Surgery (SRS) that physically aligns the
person’s physical traits with their gender identity. Meriwether v. Faulkner, 821 F.2d 408,
411-12 (7th Cir. 1987); see also Ulane, 742 F.2d at 1083 (describing the gender
dysphoria as “discomfort or discontent about nature’s choice of his or her particular sex
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and prefers to the other sex”). Certainly, invasive surgery wherein a surgeon must
“remove the genitals and [perform] construction of a vagina-substitute out of penile
tissue” exceeds the FMLA’s low bar reserved for mundane medical ailments like eye
examinations. Maggert v. Hanks, 131 F.3d 670, 671 (7th Cir. 1997).
In fact, courts dealing with determining whether a medical problem can be
considered a serious medical condition have generally held that an ailment requiring
surgery generally qualifies as a serious health condition. See Nev. Dep’t of Human Res. v.
Hibbs, 538 U.S. 721 (2003) (Court reasoned that surgery necessary to treat injuries from
an employee’s wife’s neck following a car accident qualified as a serious health condition
under FMLA); Lewis v. Boehringer Ingelheim Pharms., Inc., 79 F. Supp 394, 399-403
(D. Conn. 2015) (court held that an employee’s back and finger surgeries qualified as a
serious health condition under FMLA); Darboe v. Staples, Inc., 243 F. Supp. 2d 5, 16
(S.D.N.Y. 2003) (an employee’s nasal surgery constituted a serious health condition
under FMLA).
The FMLA further requires that a health care provider document the existence
and degree of the “serious health condition” and that the employee provide this
documentation upon request to the employer. 29 U.S.C.S. § 2613(a); see Bauer v.
Dayton-Walther Corp., 910 F. Supp. 306, 311 (E.D. Ky. 1996) (denying an employee’s
request where the condition was not diagnosed by a physican); Brohm v. JH Props, 947
F. Supp. 299, 302 (W.D. Ky. 1996) (employee’s FMLA request denied because his
medical condition was undiagnosed by a physician); Roche v. St. Lukes Shawnee Mission
Health Sys., 46 Fed. Appx. 867, 872 (8th Cir. 2002) (FMLA request denied because
elective eye surgery does not entitle employees to FMLA protections).
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The district court held that Ms. Rite’s condition does not qualify as a serious
medical condition because the symptoms of the disease do not rise to the level necessary
to qualify. This reasoning is faulty for several reasons. First, there are no degrees of
symptoms necessary to qualify within the FMLA, just the aforementioned need for
certification of a serious health condition by a healthcare provider, “inpatient care in a
hospital” or “continuing treatment by a healthcare provider”. 29 C.F.R. § 2611(11).
Next, the district court relied on the Eleventh Circuit’s decision in Barker v. Rooms to go
Furniture Corp., 375 Fed. Appx. 966 (11th Cir. 2010), which is distinguishable from this
case. In Baker, the employee suffered from anxiety but was able to perform his daily
activities by taking breaks during the day. Baker 375 Fed. Appx at 968. In this case, the
treatment for gender dysphoria required Ms. Rite to undergo extensive psychiatric
therapy, hormone replacement therapy, and eventually physical appearance altering
surgery. R. 5, 7, 9. Following the surgery, Ms. Rite’s physician ordered her to remain in
bed for one week to recover. R. 9. Ms. Rite was incapacitated from the surgery and
unable to perform her job until released by her physician to return to work. R. 9. It is true
that Ms. Rite is not able to point to any periods of incapacitation where the symptoms of
her disease prevented her from performing her work prior to the surgery. R. 18. However,
this is not necessary because FMLA defines periods of incapacitation as “the inability to
work...due to the serious health condition, treatment therefore or recovery therefrom.” 29
CFR § 825.113(B). During the week following her surgery, Ms. Rite was incapacitated
due to recovery from a serious health condition, gender dysphoria. This case is therefore
distinguishable from Barker because the employee in Barker did not suffer the periods of
incapacitation as required for the serious health condition.
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Ms. Rite suffered through a psychiatric condition for which the only definitive
treatment involved extensive surgery to realign her physical characteristics with her
gender identity. The condition and subsequent surgery constituted a serious health
condition not only due to the nature of the surgery, but also the week she was
incapacitated by her recovery therefrom. This serious medical condition coupled with the
period of incapacity satisfies the necessary elements of FMLA and should entitle Ms.
Rite to the benefits of the Act.
B. Even Assuming Arguendo that the Incapacitation from Sexual
Reassignment Surgery Cannot Meet the Low Bar of a Serious Medical
Condition, the Individual Aspects of Ms. Rite’s Battle with Gender Dysphoria
Constitute a Serious Health Condition Under the FMLA
When treated over a long period of time, gender dysphoria qualifies as a chronic
condition under FMLA and is considered a serious medical condition. FMLA requires
only that a person visit their doctor at “least twice per year” for treatment of the condition
to qualify as a chronic serious medical condition. 29 C.F.R. § 825.115(c). Additionally,
conditions requiring multiple treatments qualify as a serious medical condition when the
treatments are likely to result in a “period of incapacity of more than three consecutive,
full calendar days.” 29 C.F.R. § 825.115(e)(2). FMLA does not require “a complete
inability to work,” rather it allows leave “to be taken intermittently or on a reduced
schedule when medically necessary.” Santiago v. DOT, 50 F. Supp. 3d 136, 145 (2nd Cir.
2014); citing 29 U.S.C. § 2612(b)(1). In fact, employees “can take leave in any size
increments” necessary to receive treatment for a chronic serious medical condition. 29
C.F.R. § 825.203(d); see also Mora v. Chem-Tronics, Inc., 16 F. Supp. 2d 1192, 1200
(S.D. Cal 1998). Employees may apply the 12 week FMLA protection to attend doctor’s
appointment if the office visit is “medically necessary for a serious health condition.” 29
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U.S.C.S. § 2612(b)(1); see also Kaynor v. Fannin Regional Hosp., 946 F. Supp. 988, 997
(N.D. Ga 1997).
Ms. Rite required frequent office visits for the hormone replacement therapy
necessary to treat the gender dysphoria from which she was suffering. R. 5, 7. She was
diagnosed by her physician and entered his care in December of 2012. R. 4. As part of the
regimen of care prescribed by her physician, Ms. Rite was to have regular office visits
and medical treatments over the foreseeable future to help her in her struggle with her
disorder. R. 4-7. The elements of this treatment regimen qualify as a serious health
condition on their own merit.
A serious health condition is a condition that involves “continuing treatment by a
health care provider.” 29 C.F.R. §825.113(a). Being under the treatment regimen of a
physician that “involves multiple treatments” for a condition “that would likely result in a
period of incapacity of more than three consecutive days.” 29 C.F.R. § 825.113(e). The
pedigree of Dr. Gee is not clear, but it is reasonable that with his knowledge as a
physician the incapacity from eventual sexual reassignment surgery (SRS), the ultimate
cure of gender dysphoria, would result in an incapacity longer than the requisite threeday-period.
Alternatively, if there was no anticipated SRS that would result in a qualifying
incapacity, the multiple office visits would have still qualified Ms. Rite for FMLA
protection. If there were no hope for a recovery from her condition, leave taken under the
“continuing supervision” of the treating health care provider constitutes a serious health
condition even if the condition is permanent. 29 C.F.R. 825.115(d). Before the decision
to pursue gender reassignment surgery in 2013, any of the leave taken to pursue hormone
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replacement therapy would qualify under the long-term or permanent care provision as
the ultimate solution to the disorder had not yet been contemplated. R. 5.
Beetz, Inc. fired Ms. Rite for exhausting all of her sick leave in the pendency of
her medical care and then taking additional time to recover while she believed she was on
unpaid leave pursuant to FMLA. R. 9. The calculation of sick time used is faulty because
Ms. Rite was entitled to protected leave under FMLA for each of the visits to her
physician to undergo hormone therapy replacement prior to the surgery even taking
place. Rite was forced to exhaust most of her paid sick leave during hormone therapy
sessions with her doctor as of November 1, 2014. R. 8. This paid sick time should not
have been counted against her and should have been part of the 12 week FMLA leave.
Blocks of FMLA leave may be taken in increments “as small as one hour long” to seek
care from a treating physician. 29 C.F.R. 825.203(a); see Barron v. Runyon, 11 F. Supp.
2d 676, 679 (E.D. Va. 1998) (court held that leave taken incrementally during 12 month
period was protected by FMLA because it was used in the course of treating the
employee’s wife’s back injury).
Therefore, even assuming arguendo that sexual reassignment surgery could not
reach the low bar to constitute a serious medical condition, the necessary doctor
appointments themselves qualify and should have factored into the calculation of sick
time used. Ms. Rite was improperly terminated for exhausting her sick leave where it
should have instead been counted as FMLA leave. In fact, Ms. Rite would have only used
five weeks of the twelve available to recover from sexual reassignment surgery. R. 9.
Taking only five weeks made a full seven weeks of time available to her to be calculated
as incremental leave for treatment before the surgery. R. 9.
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C. As a Matter of Policy, Restricting Transsexual Access to Employment
Benefits and FMLA Protection is Tantamount to Banning their Freedom of
Gender Expression and Autonomy
The transsexual population around the world faces a stigma that spans from
uncomfortable in countries gaining acceptance to outright dangerous in less progressive
nations. Several countries like Malaysia, Kuwait and Nigeria outlaw transgender
expression by forbidding “posing” as the opposite sex. Kyle Knight, Rights in
Transition: Making Legal Recognition for Transgender People a Global Priority, Human
Rights Watch, https://www.hrw.org/world-report/2016/rights-in-transition.
Violence is a hateful, yet common problem for the transgender community. Cops:
Transgender Woman Brutally Attacked in Queens, (November 30, 2015),
http://newyork.cbslocal.com/2015/11/30/jackson-heights-possible-hate-crime/. In an act
representative of the hateful crimes perpetuated against transgendered people across the
US, a transgender woman was attacked in Queens, NY. Id. This attack commonly
referred to as a “curb stomp” occurs “all the time” according to the article. Id.
This may seem an extreme example, but restriction to healthcare rights and
employment protection is no less extreme of a prohibition of expression. Gender
recognition is an “essential element of other fundamental rights” including autonomy,
privacy, and dignity. Knight, supra. One’s right to identify as a male or female also
expands into housing rights, the right to travel, and education where discrimination
remains present even in our progressive society. Id. A recent survey by the Center on
Transgender Equality and the National LGBTQ Taskforce found that 64% of transgender
people faced some kind of housing discrimination when trying to buy or rent a home or
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apartment. Id. According to the survey, the problem stems from the applicant’s
identification documents do not match their gender appearance. Id.
Unfortunately, support for the transgender community has been slow to gain
ground. In fact, some states are taking steps backward and reducing the rights of this
already oppressed population. Recently, Wisconsin became the first state to prohibit
students from using a bathroom assigned to their gender. Scott Bauer, Wisconsin
Republicans defend transgender restrictions bill (Nov 19, 2015),
http://bigstory.ap.org/article/40924abf13f540b797a5c927bdcab6da/wisconsinrepublicans-defend-transgender-restrictions-bill. Previously, students were able to use an
all-gender bathroom, which did not impede their right to autonomy. Id. Now, students
are forced to either endanger their health by not using the bathroom or sacrifice their
personal identity to comply with this unreasonable legislation. Id. Forcing students to
use a bathroom that does not match their gender represents a drastic invasion on their
personal autonomy; so too does firing a person for undergoing surgery to align oneself
with their outward appearance. Unfortunately, however, this type of restroom
discrimination carries over into the workplace. 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 (2000). Despite an OSHA compliance letter
mandating transgender access to “a” restroom, rather than the previously available “no”
restroom, employers are slow to change. Id. Citing the cost of building new genderneutral facilities, employers still commonly fire transgender employees over restroom
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usage disputes. Id. at 182 (explaining that she was fired because she was allowed to use
neither men’s nor women’s restrooms and was subsequently fired).
Forcing a person to comply with perceived societal norms violates the very basic
elements of freedom and liberty upon which this nation began. Whether it be on a
personal level like which bathroom one is to use, or on a larger scale where a people are
excluded from employment protection because of a medical decision, discrimination
must be stopped.
Conclusion
Wherefore, Respondent, Erika Rite respectfully request that this Court uphold the
decision of the court below and find that a transgender employee is protected from
employment discrimination under Title VII of the Civil Rights Act of 1964 and that
Gender Dysphoria qualifies as a serious medical condition under the Family Medical
Leave Act.
Respectfully Submitted,
_____________________________
Team 20
Counsel for Respondent
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APPENDIX A
UNITED STATES CODE INVOLVED
42 USCS § 2000e-2
(a) Employer practices. It shall be an unlawful employment practice for an employer(1) to fail or refuse to hire or to discharge any individual, or otherwise 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; or
(2) to limit, segregate, or classify his employees or applicants for employment in
any way which would deprive or tend to deprive any individual of employment
opportunities or otherwise adversely affect his status as an employee, because of
such individual's race, color, religion, sex, or national origin.
(b) Employment agency practices. It shall be an unlawful employment practice for an
employment agency to fail or refuse to refer for employment, or otherwise to discriminate
against, any individual because of his race, color, religion, sex, or national origin, or to
classify or refer for employment any individual on the basis of his race, color, religion,
sex, or national origin.
(c) Labor organization practices. It shall be an unlawful employment practice for a labor
organization-(1) to exclude or to expel from its membership, or otherwise to discriminate
against, any individual because of his race, color, religion, sex, or national origin;
(2) to limit, segregate, or classify its membership or applicants for membership,
or to classify or fail or refuse to refer for employment any individual, in any way
which would deprive or tend to deprive any individual of employment
opportunities, or would limit such employment opportunities or otherwise
adversely affect his status as an employee or as an applicant for employment,
because of such individual's race, color, religion, sex, or national origin; or
(3) to cause or attempt to cause an employer to discriminate against an individual
in violation of this section.
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Appendix B
The Family Medical Leave Act
29 CFR § 825.100
(a) The Family and Medical Leave Act of 1993, as amended, (FMLA or Act)
allows eligible employees of a covered employer to take job-protected, unpaid
leave, or to substitute appropriate paid leave if the employee has earned or
accrued it, for up to a total of 12 workweeks in any 12 months (See §
825.200(b)) because of the birth of a child and to care for the newborn child,
because of the placement of a child with the employee for adoption or foster
care, because the employee is needed to care for a family member (child,
spouse, or parent) with a serious health condition, because the employee's own
serious health condition makes the employee unable to perform the functions
of his or her job, or because of any qualifying exigency arising out of the fact
that the employee's spouse, son, daughter, or parent is a military member on
active duty or call to covered active duty status (or has been notified of an
impending call or order to covered active duty). In addition, eligible
employees of a covered employer may take job-protected, unpaid leave, or
substitute appropriate paid leave if the employee has earned or accrued it, for
up to a total of 26 workweeks in a single 12-month period to care for a
covered servicemember with a serious injury or illness. In certain cases,
FMLA leave may be taken on an intermittent basis rather than all at once, or
the employee may work a part-time schedule.
(b) An employee on FMLA leave is also entitled to have health benefits
maintained while on leave as if the employee had continued to work instead of
taking the leave. If an employee was paying all or part of the premium
payments prior to leave, the employee would continue to pay his or her share
during the leave period. The employer may recover its share only if the
employee does not return to work for a reason other than the serious health
condition of the employee or the employee's covered family member, the
serious injury or illness of a covered servicemember, or another reason
beyond the employee's control.
(c) An employee generally has a right to return to the same position or an
equivalent position with equivalent pay, benefits, and working conditions at the
conclusion of the leave. The taking of FMLA leave cannot result in the loss of any
benefit that accrued prior to the start of the leave.
(c) The employer generally has a right to advance notice from the employee. In
addition, the employer may require an employee to submit certification to
substantiate that the leave is due to the serious health condition of the
employee or the employee's covered family member, due to the serious injury
or illness of a covered servicemember, or because of a qualifying exigency.
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(d) Failure to comply with these requirements may result in a delay in the start of
FMLA leave. Pursuant to a uniformly applied policy, the employer may also
require that an employee present a certification of fitness to return to work
when the absence was caused by the employee's serious health condition (See
§§ 825.312 and 825.313). The employer may delay restoring the employee to
employment without such certificate relating to the health condition which
caused the employee's absence.
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