Beetz, Inc., v. Erika Rite,

Docket No. 16-24
IN THE
SUPREME COURT OF THE UNITED STATES OF AMERICA
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
ERIKA RITE
Team 32
Attorneys for Respondent
QUESTIONS PRESENTED
I. Does Erika Rite, a transgender woman, have a lawful claim 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, thus entitling her to compensatory and punitive damages? II. Does Erika Rite’s diagnosis of gender dysphoria qualify as a “serious health condition”
under the Family and Medical Leave Act of 1993, thus entitling her to unpaid jobprotected leave to undergo gender reassignment surgery? i
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TABLE OF CONTENTS
Pages(s)
QUESTIONS PRESENTED ..................................................................................................................................i TABLE OF AUTHORITIES.................................................................................................................................v OPINIONS BELOW................................................................................................................................................1 STANDARD OF REVIEW ...................................................................................................................................1 STATEMENT OF THE CASE ............................................................................................................................1 Statement of Facts .............................................................................................................. 1 Procedural History ............................................................................................................. 5 SUMMARY OF THE ARGUMENT .................................................................................................................6 ARGUMENT .............................................................................................................................................................7 I.
ERIKA RITE, A TRANSGENDER WOMAN, IS PROTECTED FROM
SEX DISCRIMINATION BY TITLE VII OF THE CIVIL RIGHTS ACT OF
1964 BECAUSE DISCRIMINATION ON THE BASIS OF GENDER
IDENTITY IS SEX DISCRIMINATION. ................................................................... 7
A. Gender Identity Discrimination is a Form of Sex Stereotype
Discrimination, which is Prohibited by this Court’s Decision
in Price Waterhouse and the EEOC’s Decision in Macy.................................. 8
1.
Discrimination Based on Sex Stereotypes is a Form of Sex
Discrimination Prohibited by Price Waterhouse. .................................... 8
2.
Gender Identity Discrimination is a Form of Sex Stereotype
Discrimination because Transgender People by Definition Do
Not Meet Sex Stereotypes. ....................................................................... 9
3.
The EEOC has Interpreted Title VII to Prohibit Gender
Identity Discrimination. ......................................................................... 10
4.
Gender Identity Discrimination is a Reasonably Comparable
Evil to Sex Discrimination. .................................................................... 11
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TABLE OF CONTENTS (CONT.)
Pages(s)
B. Circuit Court Decisions Since Price Waterhouse Offer
Persuasive Reasoning to Apply Title VII Protection to Transgender
Individuals. ...................................................................................................... 12
1.
The Sixth and Ninth Circuits Correctly Granted Transgender
Individuals Protection under Title VII. .................................................. 12
2.
Petitioner Erroneously Relies on Circuit Court Decisions
that the Price Waterhouse Holding Overruled. ...................................... 13
C. Protection for Transgender People in Other Legal Contexts
Shows a Policy in Support of Rite’s Title VII Claim. .................................... 14
D.
II.
Rite Was Discriminated Against Because She Is Transgender. ..................... 15
1.
Rite Failed to Conform to the Stereotype Beetz Preferred
and Beetz Relied on this Trait when Making its Decision. .................... 16
2.
Since Rite Suffered Adverse Employment Actions, She is
Entitled to Damages under Title VII. ..................................................... 17
RITE’S DIAGNOSIS OF GENDER DYSPHORIA QUALIFIES AS A
“SERIOUS HEALTH CONDITION” UNDER THE FAMILY AND
MEDICAL LEAVE ACT, THUS ENTITLING HER TO UNPAID JOBPROTECTED LEAVE FOR HER GENDER REASSIGNMENT
SURGERY. ............................................................................................................. 17
A. Rite’s Diagnosis of Gender Dysphoria is a Serious Health Condition
because Her Treatment Required Inpatient Care and Continuing
Treatment. ....................................................................................................... 17
1.
Rite Received Inpatient Care when she Underwent Gender
Reassignment Surgery............................................................................ 18
2.
Rite Established that her Diagnosis for Gender Dysphoria is a
Serious Health Condition By Seeking Continuing Treatment
from a Health Care Provider. ................................................................. 19
a.
Rite Received Treatment for a Chronic Health
Condition. ................................................................................... 19 iii
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TABLE OF CONTENTS (CONT.)
Pages(s)
b.
3.
4.
Rite was Incapacitated for More than Three
Consecutive Calendar Days and Received a
Regime of Continuing Treatment. .............................................. 20
i.
Rite’s Incapacitation Lasted for More than
Three Consecutive Calendar Days. .................................... 21
ii.
Rite’s Treatment by a Health Care Provider
Resulted in a Regime of Continuing Treatment................ 22
Treatment for Gender Dysphoria is Comparable to Other
Recognized “Serious Health Conditions.” ............................................. 23 a.
Treatment for Gender Dysphoria is Analogous to
Hospitalization for Severe Depression. ...................................... 23
b.
The Symptoms of Gender Dysphoria are Similar to
those of the Congressionally-Recognized “Severe
Nervous Conditions.” ................................................................. 24
c.
Treatment for Gender Dysphoria Qualifies it as a
Serious Health Condition Similar to Treatment for
Alcoholism. ................................................................................ 25
d.
The District Court’s Incorrect Case Interpretations
Cannot be Relied on to Determine the Outcome of
Rite’s Case. ................................................................................. 26
Gender Dysphoria is a Recognized “Serious Health
Condition” in Other Areas of the Law. .................................................. 27 B. Because of Rite’s Absence for Gender Reassignment Surgery to
Treat Gender Dysphoria, She Was Unable to Perform the Functions
of Her Job. ....................................................................................................... 27 C. Because Rite Met her Obligations to Beetz, she is Entitled to FMLA
Job-Protected Leave for Gender Reassignment Surgery. ............................... 30
CONCLUSION…………………………………………………………………………………………………...30
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TABLE OF AUTHORITIES
Pages(s)
Federal Statutes
29 U.S.C. § 2601(b)(2) (1993) ...................................................................................................... 17
29 U.S.C. § 2611(11) (2009) ................................................................................................... 17, 23
29 U.S.C. § 2612 (2009) .......................................................................................................... 17, 30
29 U.S.C. § 2654 (1993) ................................................................................................................ 18
42 U.S.C. § 2000e-2(a) (1964) ........................................................................................................ 7
42 U.S.C. § 2000e-5 (1964)........................................................................................................... 10
42 U.S.C. §13981(c) (1994) .......................................................................................................... 15
Regulations
29 C.F.R. § 825.113 (2013) .............................................................................................. 18, 21, 22,
29 C.F.R. § 825.114 (2013) ........................................................................................................... 18
29 C.F.R. § 825.115 (2013) ............................................................................................... 19, 20, 22
29 C.F.R. § 825.123 (2013) ..................................................................................................... 27, 29
Cases
Supreme Court of the United States
Ashcroft v. Iqbal,
556 U.S. 662 (2009) ............................................................................................................... 1
Bell Atlantic Corp. v. Twombly,
550 U.S. 544 (2007) ............................................................................................................... 1
Chevron, U.S.A., Inc. v. Natural Resource Defense Council, Inc.,
467 U.S. 837 (1984) ....................................................................................................... 11, 18
Frontiero v. Richardson,
411 U.S. 667 (1973) ............................................................................................................. 14
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TABLE OF AUTHORITIES (CONT.)
Page(s)
McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973) ............................................................................................................. 16
Oncale v. Sundowner Offshore Services, Inc.,
523 U.S. 75 (1998) ......................................................................................................... 11, 12
Price Waterhouse v. Hopkins,
490 U.S. 228 (1989) ........................................................................................................... 8, 9
Weinberger v. Wiesenfeld,
420 U.S. 636 (1975) ............................................................................................................. 15
United States Courts of Appeals
Barker v. R.T.G. Furniture Corp.,
375 Fed. Appx. 966 (11th Cir. 2010) ................................................................................... 21
Bonkowski v. Oberg Indus., Inc.,
787 F.3d 190 (3d. Cir. 2015) ................................................................................................ 18
Carlin v. DairyAmerica Inc.,
688 F. 3d 1117 (9th Cir. 2012) ............................................................................................... 1
Caskey v. Colgate-Palmolive Co.,
535 F.3d 585 (7th Cir. 2007) .......................................................................................... 26, 27
Chandler v. Specialty Tires of Am. (Tennessee), Inc.,
283 F.3d 818 (6th Cir. 2002) ................................................................................................ 23
Dalton v. ManorCare of West Des Moines IA, LLC,
782 F.3d 955 (8th Cir. 2015) ................................................................................................ 20
Darst v. Interstate Brands Corp.,
512 F.3d 903 (7th Cir. 2008) ................................................................................................ 25
Glenn v. Brumby,
663 F.3d 1312 (11th Cir. 2011) ...................................................................................... 14, 15
Hurley v. Kent of Naples, Inc.,
746 F.3d 1161 (11th Cir. 2014) ...................................................................................... 26, 30
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TABLE OF AUTHORITIES (CONT.)
Page(s)
Kastl v. Maricopa County Community College Dist.,
325 Fed. Appx. 492 (9th Cir. 2009) ..................................................................................... 12
Manzarek v. St. Paul Fire & Marine Ins. Co.,
519 F.3d 1025 (9th Cir. 2008). ............................................................................................... 1
Pivac v. Component Serv. & Logistics, Inc.,
570 Fed. Appx. 899 (11th Cir. 2014) ................................................................................... 22
Rite v. Beetz, Inc.,
575 F.3d 185 (13th Cir. 2015) ................................................................................................ 1
Schwenk v. Hartford,
204 F.3d 1187 (9th Cir. 2000) .............................................................................................. 15
Smith v. City of Salem,
378 F.3d 566 (6th Cir. 2004) .................................................................................... 12, 13, 17
Sommers v. Budget Marketing, Inc.,
667 F.2d 748 (8th Cir. 1982) ...................................................................................... 9, 13, 14
Star v. Baca,
652 F.3d 1202 (9th Cir. 2011) ................................................................................................ 1
Ulane v. E. Airlines, Inc.,
742 F.2d 1081 (7th Cir. 1984) ........................................................................................ 13, 14
United States District Courts
Brown v. Eastern Maine Medical Center,
514 F. Supp. 104, 113 (D. Me. 2007) ................................................................................... 28
Bumgarner v. Grafco Indus., LP,
581 F. Supp.2d 1052, 1059 (S.D. Iowa 2008) ...................................................................... 21
Norsworthy v. Beard,
74 F. Supp.3d 1100 (N.D. Cal. 2014) ............................................................................. 27, 28
Rite v. Beetz, Inc.,
585 F. Supp.3d 1 (S.D. Wgr. 2015) ...................................................................... 1, 19, 26, 29
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TABLE OF AUTHORITIES (CONT.)
Page(s)
Vasconcellos v. Cybex Intern.,
962 F. Supp. 701 (D. Md. 1997)........................................................................................... 24
Williams v. Shenango,
986 F. Supp. 309 (W.D. Pa. 1997) ....................................................................................... 28
United States Tax Courts
O’Donnabhain v. Comm’r of Internal Revenue,
134 T.C. 34 (2010) ............................................................................................................... 27
Administrative Courts
Macy v. Holder,
No. 0120120821, 2012 WL 1435995 (E.E.O.C. Apr. 20, 2012) .............................. 10, 11, 16
Other Authorities
AMERICAN PSYCHIATRIC ASSOCIATION, DIAGNOSTIC AND
STATISTICAL MANUAL OF MENTAL DISORDERS
(American Psychiatric Ass’n et el. Eds., 5th ed. 2013) ........................................................ 18
Cameron Bowman & Joshua Goldberg, Care of the Patient Undergoing Sex
Reassignment Surgery (SRS)
9 (2006) ................................................................................................................................ 19
E. Coleman et al., Standards of Care (SOC) for the Health of Transsexual,
Transgender, and Gender-Nonconforming People, Version 7,
13 Int’l. J. Transgenderism 165 (2011) ................................................................................ 28
H.R.Rep. No. 8, 103rd Cong., 1st Sess., pt. 1 at 29 (1993) ........................................................... 24
Jennifer L. Casazza, Sex Reassignment Surgery: Required for Transgendered
Prisoners but Forbidden for Medicaid, Medicare, and Champus Beneficiaries,
20 Wm. & Mary J. Women & L. 625, 628 (2014) ............................................................... 29
John O’Brien, Covered Benefits for Gender Transition Serv.
(U.S. Office of Pers. Mgmt.), June 23, 2015 ........................................................................ 27
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OPINIONS BELOW
The opinion of the Court of Appeals for the Thirteenth Circuit, reversing the decision of
the District Court for the Southern District of Wagner, Rite v. Beetz, Inc., 575 F.3d 185 (13th Cir.
2015), appears on pages 22-39 of the record. The decision of the District Court for the Southern
District for Wagner, Rite v. Beetz, Inc., 585 F. Supp.3d 1 (S.D. Wgr. 2015), appears on pages 221 of the record.
STANDARD OF REVIEW
An order denying a motion to dismiss for failure to state a claim is reviewed de novo.
Carlin v. DairyAmerica Inc., 688 F. 3d 1117, 1127 (9th Cir. 2012). Review is ordinarily limited
to the face of the complaint, and all well-pleaded factual allegations are accepted as true and
construed in the light most favorable to the non-moving party. Id.
This Court, however, is not required to accept as true allegations that are solely
conclusory, unwarranted deductions of fact, or unreasonable inferences. Manzarek v. St. Paul
Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008).
To state a claim, the Court must find that the nonconclusory factual content, and the
reasonable inferences it draws, plausibly suggest a claim entitling the plaintiff to relief, “such
that it is not unfair to require the opposing party to be subjected to the expense of discovery and
continued litigation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007); Star v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011).
STATEMENT OF THE CASE
Statement of Facts
Erika Rite, a transgender woman, was terminated by Beetz, Inc. for taking leave to
undergo gender reassignment surgery. R. at 9. The termination occurred after Rite was denied a
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deserved promotion and was transferred to a less visible position that gave her fewer
opportunities to succeed in her career at Beetz. R. at 2.
Erika Rite was designated male at birth and given the name Eric. R. at 3. During
adolescence, Rite began experiencing extreme confusion about her gender identity because she
identified as female. R. at 3. After she graduated from high school in 2002, Rite left her rural,
traditional hometown because she feared she would not be accepted there. R. at 3. Rite moved to
Kompton, Wagner to attend Wagner State University, and earned a Master’s degree in Business
Administration with a concentration in marketing. R. at 3. Although Rite felt uncomfortable
identifying as a man, she continued to present as male and go by her birth name, Eric. R. at 3.
In 2005, Rite began working for Beetz as a sales consultant. R. at 4. Rite used her MBA
marketing expertise to develop new brands, consult with investors, and meet with representatives
of companies selling Beetz products. R. at 4. Rite excelled at this position and was promoted to
Lead Sales Consultant for developing the most innovative brands and generating the highest
sales numbers. R. at 4. She had a strong rapport with Beetz investors, who preferred to meet with
Rite rather than other sales consultants. R. at 4. Rite continued to present as male during this
time, suppressing her true gender, resulting in severe depression and anxiety. R. at 4.
In December 2012, Rite consulted with psychotherapist Dr. Warren Gee about the
depression and anxiety she felt as a result of her suppressed gender identity. R. at 4. During
psychotherapy sessions, they discussed Rite’s discomfort with her anatomical sex and selfidentification as female. R. at 4. After several weeks of psychotherapy, Dr. Gee diagnosed Rite
with gender dysphoria. R. at 4.
Gender dysphoria is defined as a marked difference between an individual’s expressed or
experienced gender and the gender others would assign him or her. R. at 4. Although gender
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nonconformity itself is not a mental illness, individuals who suppress their gender identity may
experience significant distress, meriting a diagnosis of gender dysphoria. R. at 4-5. Rite
experienced significant distress, depression, and anxiety as a result of her suppressed gender
identity. R. at 5.
Rite began to identify as transgender in January 2013. R. at 5. A transgender person is
one whose gender identity differs from the gender assigned at birth. R. at 5 n.4. Rite continued
her treatment regimen with Dr. Gee, which included talk therapy sessions and medication to
relieve depression and anxiety. R. at 5. Dr. Gee helped Rite research further treatment options,
including transitioning. R. at 5. Transitioning is a complex process of altering one’s birth sex. R.
at 5 n.5. After a year of continuing treatment, and in consultation with Dr. Gee, Rite decided her
best treatment option was to undergo gender reassignment surgery. R. at 5.
As the first step in her transition, Rite began a regimen of hormone replacement therapy
under Dr. Gee’s supervision, which involved administering estrogen and testosterone blockers.
R. at 5. This treatment regimen would alter Rite’s physical appearance to more closely resemble
her true gender, and it would also help Rite’s emotional stability. R. at 5. Dr. Gee advised Rite
that to continue the treatment regimen for two years, at which point she could undergo gender
reassignment surgery. R. at 6.
Rite revealed her true gender identity to Andre Young, Beetz CEO, in January 2014. R. at
7. She “came out” to Young during an interview for the position of Executive Distributor. R. at
7. Young considered Rite a candidate for the position because of her exceptional performance in
sales and product development. R. at 6-7. Rite and another Beetz sales consultant, O’Shay
Jackson, were the only candidates for the position. R. at 6. Young interviewed both candidates
and reviewed their most recent performance evaluations. R. at 6. Beetz evaluates employees by
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having a supervisor rate each employee on a scale of one to five in six different categories, then
averaging those scores for an overall rating. R. at 31. Rite rated higher than Jackson in five out of
six categories. R. at 31-32. Rite’s overall rating was 4.1. R. at 31. Jackson’s rating was 3.5. R. at
32.
During the interview, Rite told Young that she identified as female, that she was
receiving hormone replacement therapy under a doctor’s care, and that she planned to undergo
gender reassignment surgery by the end of 2014. R. at 7. Rite also asked Young to refer to her as
“Erika” from that point forward. R. at 7.
Rite began presenting as a woman about February 2014. R. at 7. She grew out her hair,
and wore makeup, nail polish, and woman’s clothing. R. at 7. Rite’s appearance became
feminine, but she remained professional at all times. R. at 7. Although Rite’s transition was met
with mixed responses from Beetz employees, she continued to do exceptional work. Many Beetz
investors supported Rite’s decisions. R. at 7. A small number of investors expressed disapproval,
but none pulled financial support from Beetz. R. at 7.
Young promoted Jackson to the Executive Distributor position in late February 2014. R.
at 7. Rite accepted Young’s decision and continued to do exceptional work as a lead sales
consultant. R. at 7. About a week later, Young transferred Rite to the Graphic Design
Department. R. at 7-8. Young told Rite that she was being transferred to a position with “less
public visibility” because “Beetz takes great pride in its image.” R. at 8. Rite began working as a
graphic designer, despite having no training or experience in that field. R. at 8. Rite received the
same salary, but had significantly less contact with Beetz employees and investors. R. at 8.
Rite continued her hormone treatment regimen under Dr. Gee’s supervision. R. at 7.
When Dr. Gee determined that Rite was ready for gender reassignment surgery, he referred her
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to Dr. Romel Dreigh. R. at 8. Dr. Dreigh approved Rite for surgery. R. at 8.
Rite contacted Tamika Woods, Beetz Director of Human Resources, for information
regarding Beetz’s medical leave policy. R. at 8. Woods referred Rite to the Beetz Employee
Handbook. R. at 8. Rite applied in writing for FMLA leave on November 1, 2014. R. at 8.
Woods requested medical certification from Rite on November 7. R. at 8. Rite submitted a
medical certification form from Dr. Dreigh the following day. R. at 8. On November 13, Woods
informed Rite that her application has been referred to senior management due to the
unprecedented nature of the request. R. at 8. Young told Rite that the matter had been referred to
Beetz’s legal department, but that Rite should not to be concerned with the logistics of the
approval process, leading her to believe that her application would be approved. R. at 9.
Rite underwent gender reassignment surgery on January 30, 2015. R. at 9. Dr. Dreigh
advised Rite to stay in bed for at least one week, and that she would be able to return to her daily
activities after one or two weeks. R. at 9. Dr. Dreigh advised Rite to avoid strenuous activities
for about three to four weeks or else risk disrupting the healing process. R. at 9.
Woods called Rite on February 1 and left a voicemail to inform her that her FMLA
application was denied. R. at 9. Woods also told Rite that since she had exhausted her accrued
paid sick leave, further absences would result in disciplinary action. R. at 9. Due to Rite’s postsurgery incapacity, she did not review Woods’ message until February 8. R. at 9. Rite had
planned to remain home to recover from surgery, then return to work on March 6. R. at 9.
On February 27, Woods called Rite to inform her that she was terminated due to her
continued absence. R. at 9.
Procedural History
Rite filed a complaint with the U.S. Equal Employment Opportunity Commission on
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March 13. R. at 9. The EEOC investigated Rite’s claim, found it had merit, and issued her a
Right to Sue notice. R. at 9-10.
Rite filed a lawsuit against Beetz on April 3, 2015, in the United States District Court,
Southern District of Wagner. She alleged that her former employer violated Title VII of the Civil
Rights Act of 1964 and therefore entitled her to compensatory and punitive damages. Rite further
alleged that recovery from her gender reassignment surgery was covered under the Family
Medical Leave Act of 1993 and therefore entitled her to back pay, attorney’s fees and costs for
this claim. R. at 2. Beetz moved to dismiss both claims. The District Court granted the motion to
dismiss, holding that Title VII does not grant protection from gender identity discrimination, and
gender dysphoria is not a serious health condition.
Rite filed an appeal with the United States Court of Appeals for the Thirteenth Circuit.
The Circuit Court reversed the District Court’s decision on both issues. R. at 30. The Circuit
Court held that Title VII prohibits gender identity discrimination, and that gender dysphoria is a
serious health condition, entitling Rite to FMLA leave. R. at 26-7, 29. The Circuit Court reversed
and remanded the case, entering judgment in favor of Rite.
The Supreme Court of the United States granted certiorari on this case for the Spring
Term, 2016, to decide on the two issues.
SUMMARY OF THE ARGUMENT
Rite has a lawful claim against Beetz because the broad scope of protection granted by
Title VII includes a prohibition of discrimination based on sex stereotypes. This consequently
provides protection for Rite, a transgender individual, against any adverse employment actions
motivated by her gender identity. Independently, Rite is entitled to unpaid job-protected leave to
undergo gender reassignment surgery because gender dysphoria is a serious health condition.
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According to this Court’s precedent, Title VII offers broad protection from employment
discrimination based on sex stereotypes. Transgender individuals by nature do not conform to
traditional gender roles and stereotypes. Beetz relied on this non-conformity when the adverse
employment decisions were made because Rite did not meet the employer’s preferred sex
stereotype in the workplace. Beetz’s consideration of Rite’s non-conformity, and subsequent
actions against her create a liability for damages under Title VII. The EEOC recognizes that
gender identity discrimination falls within the scope of sex discrimination. This Court should
respect the EEOC’s determination as the expert agency responsible for enforcing Title VII.
Gender dysphoria is a serious health condition as defined by the FMLA. Rite has proven
that her treatment for gender dysphoria involved inpatient care and continuing treatment, and that
she was unable to perform her job while recovering from gender reassignment surgery. Also,
gender dysphoria has symptoms that mirror other judicially and congressionally recognized
serious health conditions, suggesting acceptance under FMLA. Lastly, gender reassignment
surgery is a recognized treatment for gender dysphoria in several areas of the law. Thus, Beetz’s
denial of Rite’s FMLA leave violates the statute.
This Court should affirm the decision of the Thirteenth Circuit Court of Appeals to hold
that Title VII prohibits gender identity discrimination, and that gender dysphoria qualifies as a
serious health condition under the FMLA.
ARGUMENT
I.
ERIKA RITE, A TRANSGENDER WOMAN, IS PROTECTED FROM SEX
DISCRIMINATION BY TITLE VII OF THE CIVIL RIGHTS ACT OF 1964
BECAUSE DISCRIMINATION ON THE BASIS OF GENDER IDENTITY IS SEX
DISCRIMINATION.
Title VII prohibits an employer from considering an employee’s sex when making
employment decisions. 42 U.S.C. § 2000e-2(a) (1964). This prohibition is not limited to
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discrimination based on biological sex, but applies to a broad range of disparate treatment
between male and female employees. Also, the District Court erred in dismissing Rite’s claim,
because it relied on circuit court decisions that were overruled by this Court’s holding in Price
Waterhouse v. Hopkins, 490 U.S. 228 (1989). The Sixth Circuit properly applied Price
Waterhouse to support transgender Title VII claims. Also, courts have found a cause of action
for transgender people in other areas of the law, which is persuasive authority to support a Title
VII claim. Lastly, Rite was discriminated against because she is transgender.
A. Gender Identity Discrimination is a Form of Sex Stereotype Discrimination, which is
Prohibited by this Court’s Decision in Price Waterhouse and the EEOC’s Decision in
Macy.
This Court has long held that Title VII prohibits a wide range of disparate treatment of
men and women in the workplace. One example of prohibited disparate treatment is
discrimination based on sex stereotypes. Id. Gender identity discrimination is discrimination
based on sex stereotypes because transgender people do not match the stereotypes of their
biological sex. The U.S. Equal Employment Opportunity Commission has found that gender
identity discrimination is sex discrimination for Title VII purposes. The EEOC investigated
Rite’s charge and determined it had merit. This District Court failed to properly defer to the
EEOC’s interpretation of Title VII, or to its reasonable cause determination in Rite’s case.
1. Discrimination Based on Sex Stereotypes is a Form of Sex Discrimination
Prohibited by Price Waterhouse.
This Court recognized that Congress intended Title VII’s prohibition on sex
discrimination to have a broad scope. “Congress intended to strike at the entire spectrum of
disparate treatment of men and women resulting from sex stereotypes.” Id. at 250. Title VII
prohibits discriminating against a female employee because she is female, and it also prohibits
discriminating against a female employee because she does not fit into a stereotypical female
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role. “[W]e are beyond the day when an employer could evaluate employees by assuming or
insisting that they matched the stereotype associated with their group.” Id. at 251. Discrimination
against a person because she does not conform to a stereotypical gender role is a type of sexbased discrimination that Title VII prohibits.
The District Court erroneously applied a “narrow and traditional interpretation” of Title
VII. R. at 10. It justified this narrow interpretation by citing to Sommers v. Budget Marketing,
Inc., 667 F.2d 748 (8th Cir. 1982), a decision involving a transgender plaintiff that predates Price
Waterhouse by several years. R. at 11. The Sommers court accepted the employer’s pretextual
explanation for terminating the employee, Sommers, which was that her “misrepresentation [of
her gender identity] led to disruption of the company’s work routine.” Id. at 749. Some female
employees threatened to quit if Sommers was allowed to use the women’s restroom. Id. at 750.
The court further justified its narrow application of Title VII by observing, “it is generally
recognized that the thrust of the ‘sex’ amendment [to Title VII] was towards providing equal
opportunities for women.” Id. at 750.
The Sommers decision on which the District Court relies does not apply to the facts of
Rite’s claim, nor to the current state of civil rights law. There is no evidence that Rite’s transition
caused any disruption like the one discussed in Sommers. Nor does Beetz characterize Rite’s pretransition behavior as a “misrepresentation.” Even if it did, the Sommers court’s reasoning is
plainly overruled by this Court’s holding in Price Waterhouse, which includes sex stereotyping
in Title VII’s prohibitions.
2. Gender Identity Discrimination is a Form of Sex Stereotype
Discrimination because Transgender People by Definition Do Not Meet
Sex Stereotypes.
Discrimination against a transgender person is a form of sex-stereotype discrimination.
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A transgender person, by definition, feels a conflict between biological sex and gender identity,
and therefore may not conform to sex-stereotypes. R. at 4 n.3. As this Court recognized in Price
Waterhouse, Title VII prohibits discrimination against an employee based on sex stereotypes.
Beetz began discriminating against Rite when she announced her intention to transition.
R. at 7. In other words, Beetz discriminated against Rite after Young learned that she did not
conform to traditional sex-stereotypes. Price Waterhouse makes it clear that discrimination based
on gender nonconformity is a form of sex-based discrimination prohibited by Title VII. When
Beetz made employment decisions based on Rite’s gender identity, it was making decisions
based on Rite’s sex, which violated Title VII.
3. The EEOC has Interpreted Title VII to Prohibit Gender Identity
Discrimination.
The U.S. Equal Employment Opportunity Commission, the expert agency responsible for
enforcing Title VII, recognizes that transgender discrimination is sex discrimination. The EEOC
is empowered “to prevent any person from engaging in any unlawful employment practice as set
forth in [Title VII].” 42 U.S.C. § 2000e-5(a) (1964). The agency reviews and investigates
charges filed by employees alleging discrimination and makes reasonable cause determinations.
42 U.S.C. § 2000e-5(b) (1964). The EEOC investigated Rite’s charge and determined that her
allegations had merit. R. at 10. That determination is consistent with the Commission’s decision
in Macy v. Holder, which applied this Court’s precedents to find that gender identity
discrimination is a form of sex discrimination. No. 0120120821, 2012 WL 1435995 (E.E.O.C.
Apr. 20, 2012).
The Macy Commission explicitly announced that, “claims of discrimination based on
transgender status, also referred to as claims of discrimination based on gender identity, are
cognizable under Title VII’s sex discrimination prohibition.” Id. at 4. The Commission relied on
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this Court’s ruling in Price Waterhouse and reasoned that “Title VII’s prohibition on sex
discrimination proscribes gender discrimination, and not just discrimination on the basis of
biological sex.” Id. at 6. Price Waterhouse makes clear that Title VII protections “sweep far
broader” than biological sex, and apply to “cultural and social aspects associated with
masculinity and femininity.” Id. at 6. Gender identity discrimination is discrimination based on
cultural and social expectations of masculinity and femininity, and therefore violates Title VII.
The EEOC determined that Rite’s claim has merit. R. at 10. It is well established that
“considerable weight should be accorded to an executive department's construction of a statutory
scheme it is entrusted to administer.” Chevron, U.S.A., Inc. v. Natural Resource Defense
Council, Inc., 467 U.S. 837, 844 (1984). Under this principle of deference to administrative
interpretations, a reviewing court “does not simply impose its own construction of the statute.”
Id. at 843. Rather, the court asks, “whether the agency’s answer is based on a permissible
construction of the statute.” Id. The Commission’s interpretation in the Macy decision is a
permissible construction of Title VII that is consistent with this Court’s precedents. This Court
should adopt the reasoning of the Macy Commission and hold that gender identity discrimination
is a form of sex discrimination that Title VII prohibits.
4. Gender Identity Discrimination is a Reasonably Comparable Evil to Sex
Discrimination.
This Court has applied Title VII to a variety of situations probably not envisioned by the
Congress that passed the Civil Rights Act in 1964. 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 in employment.” Oncale
v. Sundowner Offshore Services, Inc., 523 U.S. 75, 78 (1998). While acknowledging that, “maleon-male sexual harassment in the workplace was assuredly not the principal evil Congress was
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concerned with when it enacted Title VII,” the Oncale Court held that same-sex sexual
harassment violated Title VII, reasoning that “statutory prohibitions often go beyond the
principal evil to cover reasonable comparable evils.” Id. at 79.
Gender identity discrimination is a reasonably comparable evil that Title VII should
prohibit. Gender identity is inextricably linked to sex. An employer who bases employment
decisions on an employee’s gender identity cannot do so without considering the employee’s
biological sex. Young admitted that he transferred Rite out of concern for Beetz’s public image.
R. at 8. This decision was based on Rite’s gender identity, which means that Young based his
decision at least in part on her biological sex, therefore violating Title VII.
B. Circuit Court Decisions Since Price Waterhouse Offer Persuasive Reasoning to
Apply Title VII Protection to Transgender Individuals.
Both the Sixth and Ninth Circuits recognize protection for transgender individuals under
Title VII. Although the Seventh and Eighth Circuits denied protection to transgender individuals
under Title VII, theses cases were overruled by this Court’s decision in Price Waterhouse.
1. The Sixth and Ninth Circuits Correctly Granted Transgender Individuals
Protection under Title VII.
The Sixth Circuit recognized the need to eliminate injustices in the workplace through its
decision in Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004). The court found a cause of
action under Title VII for individuals who identify as transgender and consequently do not
conform to stereotypical gender roles. Id. Similarly, the Ninth Circuit found that a terminated
employee was able to state a claim under Title VII when the employer’s actions were motivated
by impermissible gender stereotypes. Kastl v. Maricopa County Community College Dist., 325
Fed. Appx. 492, 493 (9th Cir. 2009). The court stated “it is unlawful to discriminate against a
transgender person because he or she does not behave in accordance with an employer’s
expectations for men or women.” Id.
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In Smith, a biologically born male was diagnosed with Gender Identity Disorder (GID).
Smith, 378 F.3d at 568. Smith began expressing a feminine appearance at work, and co-workers
commented on his nonconforming mannerisms and presentation. Id. The court’s analysis relied
heavily on this Court’s reasoning in Price Waterhouse, stating that “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.” Id. at 575. The court held that “[s]ex
stereotyping based on a person’s gender non-conforming behavior is impermissible
discrimination, irrespective of the cause of that behavior.” Id. at 575. Hence, whether an
individual’s gender nonconformity is caused by personal preference to be less feminine, or by a
diagnosis of GID, both individuals are equally protected from discrimination under Title VII.
2. Petitioner Erroneously Relies on Circuit Court Decisions that the Price
Waterhouse Holding Overruled.
Beetz relies on Sommers, 667 F.2d 748, and Ulane v. E. Airlines, Inc., 742 F.2d 1081 (7th
Cir. 1984), which denied protection under Title VII to transgender individuals to support their
argument that Title VII’s scope is narrow and excludes transgender discrimination. However,
these cases were decided years before this Court’s Price Waterhouse decision, which held that
Title VII’s reference to “sex” encompasses both biological sex and gender nonconformity. This
decision is the leading precedent for discrimination issues against transgender individuals based
on gender nonconformity, rendering these previous decisions inapplicable.
Even if these decisions were still good law, they are distinguishable from Rite’s case. In
Sommers, the employee was a biologically born male who presented as a female. Sommers, 667
F.2d at 748. According to the employer, she was terminated because “she misrepresented herself
as an anatomical female when she applied for the job” and “the misrepresentation led to a
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disruption of the company’s work routine.” Id. at 749. Here, there is no evidence that Rite’s
transition and presentation as a woman at work disrupted business, and there is no evidence that
Beetz considered her pre-transition behavior as a misrepresentation. R. at 7. Rite continued to do
exceptional work, and no investor pulled financial support upon learning of Rite’s transition. R.
at 7. This Court should not rely on Sommers because it is both outdated and encompasses other
issues that caused the plaintiff’s termination.
Rite’s case is also distinguishable from the facts in Ulane. In Ulane, the employee
identified as transsexual and was in the process of transitioning. Ulane, 742 F.2d at 1083.
However, the employer was unaware of the employee’s gender identity and respective
treatments. Id. at 1087. The court determined that there was no evidence in the record to support
the conclusion that the employer discriminated against the employee on this factor. Id. at 1083.
By contrast, Young knew about Rite’s gender identity and anticipated transition because she
informed him during the Executive Director interview. R. at 7. Additionally, Young transferred
Rite to another position with “less public visibility” because the company “takes great pride in its
image.” R. at 8. These facts together evince that, unlike the employer in Ulane, Beetz had notice
of Rite’s condition and discriminated against her because of that factor.
C. Protection for Transgender People in Other Legal Contexts Shows a Policy in Support
of Rite’s Title VII Claim.
In the Constitutional context, the Eleventh Circuit held that transgender individuals are
protected from sex-based discrimination under the Equal Protection Clause when they are
terminated on a basis of gender nonconformity. Glenn v. Brumby, 663 F.3d 1312 (11th Cir.
2011). This Court previously held that individuals have the Constitutional right to be free from
discrimination based on gender stereotypes. See Frontiero v. Richardson, 411 U.S. 667 (1973)
(holding a law that required only female Air Force officers to prove the dependency of their
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husbands for increased benefits unconstitutional, because it relied on the gender stereotype that
women were traditionally financially dependent on their spouse); see also Weinberger v.
Wiesenfeld, 420 U.S. 636 (1975) (Gender-based generalization cannot serve as the basis for a
law’s constitutionality). Further, “courts have held that plaintiffs cannot be discriminated against
for wearing jewelry that was considered too effeminate, carrying a serving tray too gracefully, or
taking too active a role in child-rearing.” Glenn, 663 F.3d at 1318-19. Relying on these previous
decisions, the Glenn court found that these protections against discrimination on the basis of
gender stereotype apply to all individuals who do not conform. Accordingly, these protections
should apply to transgender individuals because “[a] person is defined as transgender precisely
because of the perception that his or her behavior transgresses gender stereotypes.” Id. at 1316.
Transgender individuals also receive protection in the context of the Gender Motivated
Violence Act (GMVA) as a part of the Violence Against Women Act. In Schwenk v. Hartford, a
transgender female inmate in an all male penitentiary was afforded protection under the GMVA1
after being sexually assaulted by a correctional officer. 204 F.3d 1187, 1202 (9th Cir. 2000). The
court held that the officer’s knowledge of the inmate’s transsexuality and her transition from
male to female, analogously her gender nonconformity, was the motivating factor for the assault
and discrimination, and therefore barred under the GMVA. Id. Further, the court explained that
the GMVA parallels Title VII because “for purposes of these two acts, the terms ‘sex’ and
‘gender’ have become interchangeable.” Id. at 1203. Conclusively, discrimination based on
gender nonconformity is discrimination “because of sex” as prohibited by Title VII.
D. Rite Was Discriminated Against Because She Is Transgender.
An employee is entitled to damages based on discrimination when she proves that she has
1
The Gender Motivated Violence Act provides a cause of action against “A person...who commits a crime
of violence motivated by gender and thus deprives another of the right declared in subsection (b),” which is the right
to be free from crimes of violence. 42 U.S.C. §13981(c) (1994).
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a protected trait and the employer relied on this trait when taking an adverse employment action.
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Here, Rite is transgender, which is a
protected trait under Title VII. Also, Beetz took adverse employment actions against Rite, based
on her gender identity, entitling Rite to compensatory and punitive damages.
1. Rite Failed to Conform to the Stereotype Beetz Preferred and
Beetz Relied on this Trait when Making its Decision.
Beetz management did not believe that Rite’s appearance and mannerisms met the
company’s preferred stereotype for the Executive Director position, and relied on this preference
when they transferred her to another department. R. at 8. The EEOC decision in Macy, relying on
Price Waterhouse, stated, “the central question is always whether the ‘employer actually relied
on [the employee’s] gender in making it’s decision.’” No. 0120120821, 2012 WL 1435995, at
*15 (E.E.O.C. Apr. 20, 2012).
One month after Rite disclosed to Young in the Executive Distributor interview her
intention to transition from male to female, Rite began presenting as a woman at work. R. at 7.
Young promoted Jackson rather than Rite, despite Rite’s exceptional performance in sales and
her higher score on the Employee Performance Review. R. at 7. One week later, Rite was
transferred to the Graphic Design Department because “Beetz takes great pride in its image” and
Young “thought it was in the company’s best interest to relocate her to another department with
‘less public visibility.’” R. at 8. As a result of the transfer, Rite suffered a substantial decrease in
employee and investor contact, limiting her communication to telephone or email. R. at 8. Rite’s
work performance remained consistent throughout the entire process, and the only thing that
changed about her image was her womanly appearance and mannerisms. The timing of Young’s
statements demonstrates that his decision was motivated by Rite’s transgender identity, because
it did not conform to the company’s preferred stereotype.
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2. Since Rite Suffered Adverse Employment Actions, She is Entitled to
Damages under Title VII.
An adverse employment action is defined as a “materially adverse change in the terms
and conditions of [plaintiff’s] employment.” Smith, 378 F.3d at 576. These changes can include
“firing, failing to promote, reassignment with significantly different responsibilities, [and] a
material loss of benefits.” Id. Young failed to promote Rite to the position of Executive
Distributor despite her high qualifications. R. at 6, 31. He transferred her to a position with
significantly different responsibilities than her previous position and less contact with business
partners. R. at 8. These constitute adverse employment actions, and because Young based this
decision on Rite’s gender identity, Rite has a lawful claim under Title VII and is entitled to
compensatory and punitive damages.
II. RITE’S DIAGNOSIS OF GENDER DYSPHORIA QUALIFIES AS A “SERIOUS
HEALTH CONDITION” UNDER THE FAMILY AND MEDICAL LEAVE ACT,
THUS ENTITLING HER TO UNPAID JOB-PROTECTED LEAVE FOR HER
GENDER REASSIGNMENT SURGERY.
The Family and Medical Leave Act allows employees to take “reasonable leave for
medical reasons.” 29 U.S.C. § 2601(b)(2) (1993). To establish an FMLA claim, an employee
must show she has a “serious health condition,” which makes the employee unable to perform
the functions of her position. 29 U.S.C. § 2612(a)(1)(D) (2009). Also, the employee must fulfill
her obligations to the employer. Rite’s diagnosis of gender dysphoria meets the definition of
“serious health condition” entitling her to FMLA leave.
A. Rite’s Diagnosis of Gender Dysphoria is a Serious Health Condition because Her
Treatment Required Inpatient Care and Continuing Treatment.
The definition of “serious health condition” includes a mental condition that involves
either inpatient care in a hospital, or continuing treatment by a health care provider. 29 U.S.C. §
2611(11) (2009). Gender dysphoria is a mental condition recognized by the American
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Psychiatric Association. AMERICAN PSYCHIATRIC ASSOCIATION, DIAGNOSTIC AND
STATISTICAL MANUAL OF MENTAL DISORDERS (American Psychiatric Ass’n et el. Eds.,
5th ed. 2013).
The FMLA empowers the Secretary of Labor to prescribe regulations as are necessary to
enforce the statute. 29 U.S.C. § 2654 (1993). The Department of Labor defines “serious health
condition” at 29 C.F.R. § 825.113 (2013), and these definitions are entitled to deference unless
this Court finds that they are arbitrary or capricious. Chevron, 467 U.S. at 837.
This Court should recognize that Rite’s diagnosis of gender dysphoria qualifies as a
serious health condition under FMLA because she meets the regulatory definition in two ways:
Rite received inpatient care to undergo gender reassignment surgery and received continuing
treatment from a health care professional. Additionally, gender dysphoria is similar to other
serious health conditions recognized for FMLA purposes, and is recognized as a serious health
condition in other legal contexts.
1. Rite Received Inpatient Care when she Underwent Gender Reassignment
Surgery.
Inpatient care is “an overnight stay in a hospital . . . including any period of incapacity . .
. in connection with such inpatient care.” 29 C.F.R. § 825.114 (2013). The Third Circuit defines
“overnight stay” as being “from one calendar day to the next, as measured by [the] individual’s
time of admission to the time of discharge.” Bonkowski v. Oberg Indus., Inc., 787 F.3d 190, 199
(3d. Cir. 2015). Incapacity is the “inability to work, attend school or perform other regular daily
activities due to the serious health condition, treatment therefore, or recovery therefrom.” 29
C.F.R. § 825.114 (2013).
Rite received inpatient care as a result of her gender reassignment surgery to treat her
medically diagnosed gender dysphoria. On January 30, 2015, Rite underwent gender
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reassignment surgery. R. at 9. Generally, a patient undergoing gender reassignment surgery is
admitted to the hospital the day before the scheduled surgery, and can average between six to
eight days in the hospital for monitoring. Cameron Bowman & Joshua Goldberg, Care of the
Patient Undergoing Sex Reassignment Surgery (SRS) 9 (2006). Post-surgery, Dr. Dreigh advised
further bed-rest for one to two weeks. R. at 9. Based on the type of surgery, Rite’s stay in the
hospital spanned over multiple calendar days. Additionally, Rite was incapacitated, as she was
unable to perform regular daily activities for at least a week’s time. Lastly, the District Court
found that Rite received inpatient care. Rite, 585 F. Supp.3d at 25. Based on her recovery time in
the hospital as well as her continued recovery, it is evident that Rite’s gender reassignment
surgery satisfies the inpatient care requirement of the FMLA as the treatment for her gender
dysphoria.
2. Rite Established that her Diagnosis for Gender Dysphoria is a Serious
Health Condition By Seeking Continuing Treatment from a Health Care
Provider.
Continuing treatment by a health care provider may include (1) treatment for a chronic
condition, 29 C.F.R. § 825.115(c) (2013), or (2) incapacitation and treatment. 29 C.F.R. §
825.115(a) (2013). Since gender dysphoria meets both possibilities, Rite established a “serious
health condition,” entitling her to FMLA protected leave.
a. Rite Received Treatment for a Chronic Health Condition.
Rite’s gender dysphoria meets the standard for a chronic serious health condition, which
qualifies Rite for FMLA leave. 29 C.F.R. § 825.115(c) (2013). A “chronic condition” requires
periodic visits at least twice a year for treatment by a health care provider; continues over an
extended period of time, including recurring episodes of a single underlying condition; and may
cause episodic rather than a continuing period of incapacity. Id.
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In Dalton v. ManorCare of West Des Moines IA, LLC, the Eighth Circuit determined that
an employee did not meet the “periodic visits” requirement because attendance at doctor
appointments to treat certain symptoms did not eventually lead to a diagnosis of a serious health
condition. 782 F.3d 955, 961 (8th Cir. 2015). Also, the employee’s symptoms did not result in
any incapacity “other than brief absences [for one to two days] to obtain medical diagnosis and
treatment.” Id.
Unlike Dalton, Rite presented sufficient evidence that she suffers from a chronic
condition, requiring FMLA job-protected leave. Rite visited with psychotherapist Dr. Gee over a
period of a few years, and was diagnosed with and received treatment for gender dysphoria. R. at
5-9. Rite underwent years of therapy, took medication for anxiety and depression, and underwent
hormone therapy treatment. R. at 5-9. Rite suffered from “episodic incapacity” when she
received hormone therapy treatments. These treatments prepared Rite for gender reassignment
surgery. R. at 5-9. Rite therefore suffered from a chronic health condition, which qualifies as a
“continuing treatment” of a serious health condition.
b. Rite was Incapacitated for More than Three Consecutive Calendar
Days and Received a Regime of Continuing Treatment.
An employee is incapacitated when such incapacity is for “more than three consecutive,
full calendar days,” 29 C.F.R. § 825.115(a) (2013). An employee receives treatment when
treatment by a health care provider results in “a regime of continuing treatment” under the health
care provider’s supervision. 29 C.F.R. § 825.115(a)(2) (2013). Also, the health care provider
determines “whether additional treatment visits or a regimen of continuing treatment is
necessary.” 29 C.F.R. § 825.115(a)(4) (2013).
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i.
Rite’s Incapacitation Lasted for More than Three
Consecutive Calendar Days.
An employee is “incapacitated” when she is unable to work or perform other regular
daily activities due to the serious health condition, its treatment, or recovery. 29 C.F.R. §
825.113(b) (2013).
An employee that suffers an injury and receives immediate treatment, without missing
any work, does not meet the three-day incapacitation requirement. Bumgarner v. Grafco Indus.,
LP, 581 F. Supp.2d 1052, 1059 (S.D. Iowa 2008). In Bumgarner, an employee cut her forehead
at work and received seven stitches. Id. at 1055. Although the company doctor diagnosed her
with “closed head trauma,” resulting in headaches, id., he certified that the employee was
capable of returning to work. Id. at 1056. The court found that the employee did not present
enough evidence to meet the incapacitation requirement, despite her leaving early the subsequent
day of the injury. Id. at 1059.
Also, the District Court incorrectly relies on Barker v. R.T.G. Furniture Corp., 375 Fed.
Appx. 966 (11th Cir. 2010) to establish that Rite failed to meet the incapacity standard. In
Barker, the Eleventh Circuit found an employee that visited a doctor on a single occasion and
thereafter received prescription medication, but provided no further evidence of incapacity,
including medical testimony, did not present sufficient evidence to establish a serious health
condition. Id. at 968. In fact, the employee’s doctor testified that the employee was not
incapacitated, “and did not advise him to stop working.” Id.
Unlike Bumgarner and Barker, Rite presented sufficient evidence of incapacitation. Rite
underwent gender reassignment surgery, including breast augmentation and surgery to feminize
her facial features. R. at 9. Rite’s doctor provided sound medical advice that she stay in bed for
at least one week, and that she could “return to her daily activities” within one to two weeks. R.
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at 9. Further evidence suggests she was incapacitated because she failed to return Woods’
voicemail that denied her FMLA leave. R. at 9. If Rite were unimpaired, she would have
reviewed this message earlier on, or even answered the phone when Woods called. However, the
record indicates that Rite was incapacitated for at least ten days post-surgery, meeting §
825.113(b).
ii. Rite’s Treatment by a Health Care Provider Resulted in a
Regime of Continuing Treatment.
A single doctor visit, without further treatment, fails to demonstrate “treatment” under 29
C.F.R. § 825.115(a) (2013). Pivac v. Component Serv. & Logistics, Inc., 570 Fed. Appx. 899,
903 (11th Cir. 2014). In Pivac, an employee took a one-day leave from work to treat anxiety and
depression. Id. Following the visit, the employee was not prescribed any further treatment, and
the employee was able to return to work, less than two weeks later, without any restrictions. Id.
The court found that because the employee was unable to show that her doctor visit “resulted in a
‘regime of continuing treatment,’” she did not meet § 825.115(a).
Unlike Pivac, Rite successfully presented sufficient evidence to demonstrate treatment
under § 825.115(a). Rite sought the help of psychotherapist Dr. Gee in December 2012 for
anxiety and discomfort from her gender identity. R. at 4. Rite had “several psychotherapy”
sessions with Dr. Gee, and after the first few weeks of visits she was diagnosed with gender
dysphoria. R. at 4. Rite later began to take medication to help with the depression and anxiety,
and also researched other treatment options with Dr. Gee. R. at 5. After extensive consideration
with Dr. Gee’s guidance, Rite decided to undergo gender reassignment surgery. R. at 5. Dr. Gee
prescribed a hormone therapy regime to help Rite with the transition. R. at 5. Since Rite’s
multiple doctor visits over the years resulted in a physician’s decision to administer continuing
hormone treatment, Rite properly demonstrated “treatment” as required under § 825.115(a).
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3. Treatment for Gender Dysphoria is Comparable to Other Recognized
“Serious Health Conditions.”
Gender dysphoria is analogous to other types of recognized “serious health conditions”
and thus should be considered a “serious health condition.” Treatment for gender dysphoria is
similar to hospitalization for severe depression, severe nervous conditions, and treatment for
alcoholism. Lastly, the District Court erred in its opinion when it analogized Rite’s condition to
cases where FMLA leave was denied.
a. Treatment for Gender Dysphoria is Analogous to Hospitalization
for Severe Depression.
Hospitalization for severe depression is a recognized “serious health condition” covered
by § 2611(11)(A) (2009) of the FMLA. Chandler v. Specialty Tires of Am. (Tennessee), Inc., 283
F.3d 818, 825 (6th Cir. 2002); see also 29 U.S.C. § 2611(11)(A) (2009). In Chandler, an
employee suffering from severe depression overdosed, and was later fired while on approved
leave for medical treatment. Chandler, 283 F.3d at 821. The court determined that it was not
unreasonable for a jury to find that the employee was fired for taking FMLA leave. Id. at 826.
Like Chandler, treatment for gender dysphoria is analogous to hospitalization for severe
depression, and therefore should be considered a “serious health condition.” Gender dysphoria is
associated with “significant distress,” and “[i]ndividuals experiencing gender dysphoria may also
frequently experience depression or anxiety and tend to withdraw from social interaction as a
result.” R. at 5. Rite experienced significant distress her entire life, starting at an early age, when
she experienced “extreme confusion about her gender identity,” which caused her to leave her
hometown because she feared disapproval as a transgender woman. R. at 3. She never felt
comfortable in her own skin “because she always identified as female.” R. at 3. As noted in the
District Court’s record, those with gender dysphoria “experience a strong desire to outwardly
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present as their correct gender identity, rather than the gender identity assigned to them at birth,
dress according to their gender identity, and alter their body to conform to their gender identity.”
R. at 5. While in her sales position at Beetz, Rite became depressed because of her severe gender
suppression. R. at 4. Rite tried to act as a male at work, but at home continued to struggle
between her female gender identity and her male presentation. R. at 4. Once Rite identified as
transgender in January 2013, was diagnosed with gender dysphoria, and continued to visit Dr.
Gee, her mental condition improved significantly. R. at 5. Although Rite’s mental condition
improved, she still was a female trapped in a male’s body. Of course her diagnosis made her feel
better because, for the first time in her life, she could identify the cause of her distress. However,
the underlying depression and anxiety persisted, resulting in gender reassignment surgery to treat
gender dysphoria. Thus, a jury could find that Rite suffered from a “serious health condition.”
b. The Symptoms of Gender Dysphoria are Similar to those of the
Congressionally-Recognized “Severe Nervous Conditions.”
An employee that experiences symptoms such as fright and nervousness, which affects
her mental and physical health, is suggestive of a severe nervous disorder within Congress’s
meaning of “serious health condition.” Vasconcellos v. Cybex Intern., 962 F. Supp. 701, 705-06
(D. Md. 1997). In Vasconcellos, an employee was assaulted by her immediate supervisors, and
required medical attention. Id. at 705. The court pointed to the FMLA’s legislative history that
gives examples of “serious health conditions,” which includes “severe nervous disorders.” Id. ;
quoting H.R.Rep. No. 8, 103rd Cong., 1st Sess., pt. 1 at 29 (1993). Liberally construing the
complaint in the employee’s favor, the court found that the employee presented the employer
with sufficient notice to withstand a motion to dismiss. Vasconcellos, 962 F. Supp. at 706.
Similar to Vasconcellos, Rite’s symptoms of severe depression and anxiety affected her
mental and physical health, suggesting a condition that Congress intended to cover under the
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FMLA. Rite suffered from severe depression and anxiety starting from a young age, when she
felt her gender expression was incongruous to her gender identity. R. at 3. Later, while working
with clientele in a sales position at Beetz, she became depressed because she had to suppress her
true gender expression. R. at 4. This mental condition affected her deeply, causing Rite to
experience daily internal battles between her true female gender identity and her presentation as
male. R. at 4. She even consulted with her doctor about “her anxiety and discomfort about her
gender identity.” R. at 4. After several psychotherapy sessions with Dr. Gee, he diagnosed Rite
with gender dysphoria, which is a mental illness when the individual experiences significant
distress, as Rite has throughout her life. R. at 4-5. Thus, liberally construing the complaint in
favor of Rite, she has presented sufficient notice of her serious health condition to withstand a
motion to dismiss.
c. Treatment for Gender Dysphoria Qualifies it as a Serious Health
Condition Similar to Treatment for Alcoholism.
Incapacity due to treatment for alcoholism is a recognized “serious health condition” that
qualifies an employee for FMLA protected leave. In Darst v. Interstate Brands Corp., an
employee was terminated for missing work when he sought treatment for alcoholism. 512 F.3d
903, 904 (7th Cir. 2008). Although the court found that the employee did not suffer from a
serious health condition because he did not present sufficient evidence that he received
continuing treatment, id. at 912, the court did recognize that alcoholism may be a serious health
condition within the parameters of the FMLA when treatment causes the incapacity. Id. at 907.
Just like treatment for alcoholism, treatment for gender dysphoria caused Rite’s
incapacity, and is therefore a “serious health condition” within the meaning of FMLA protected
leave. Rite underwent surgery, at her doctor’s recommendation, to treat her symptoms caused by
the gender dysphoria. R. at 8. The surgery caused Rite’s incapacitation for at least one week, as
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recommended by her surgeon, Dr. Dreigh, with further recommendations that she wait to resume
her regular daily activities until one to two weeks after her surgery. R. at 9. Because the surgery
incapacitated Rite for more than three days, Rite’s treatment is analogous to treatment for
alcoholism that would require a person to miss work in order to manage her condition.
d. The District Court’s Incorrect Case Interpretations Cannot be
Relied on to Determine the Outcome of Rite’s Case.
The District Court misstates precedent to erroneously support its decision that gender
dysphoria is not a serious health condition. Rite, 585 F. Supp.3d at 19-20. The District Court
mischaracterized the holding in Hurley v. Kent of Naples, Inc., 746 F.3d 1161 (11th Cir. 2014) to
present an example of a case where an employee who suffered from depression and anxiety was
denied FMLA leave. Rite, 585 F. Supp.3d at 19. However, this is not the holding in Hurley.
Rather, the Eleventh Circuit specifically found that the employee was not eligible for FMLA
leave because he failed to meet his burden of proof to show that his leave request qualified for
FMLA protection. Hurley, 746 F.3d at 1168. In fact, the employee did prove that his depression
constituted a chronic health condition, but because the employee failed to show that his leave
was for “a period of incapacity or a treatment for such incapacity,” the employee was not entitled
to FMLA protected leave. Id. at 1164, 1168.
Also, the District Court incorrectly relies on Caskey v. Colgate-Palmolive Co. to support
its position that Rite’s symptoms stemming from gender dysphoria do not constitute a serious
health condition. 535 F.3d 585 (7th Cir. 2007). In Caskey, an employee was denied FMLA leave
for failing to present sufficient evidence to show that her absences from work were the result of a
serious health condition. Id. at 590. Although the employee stated she suffered from symptoms
such as depression and anxiety, she did not receive inpatient care and failed to present evidence
of continuing treatment. Id. at 591. Because the employee failed to present sufficient evidence of
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a serious health condition, and instead solely relied on her own testimony to support her claim,
she had no right to FMLA protected leave. Id.
4. Gender Dysphoria is a Recognized Serious Health Condition in Other
Areas of the Law.
Gender dysphoria is recognized as a serious health condition in other relevant legal
contexts. In finding for Rite, the Thirteenth Circuit observed that gender dysphoria is recognized
as a serious health condition in other areas of the law, and that transition-related treatment may
be medically necessary. R. at 27-30. Transgender employees of the Federal government receive
coverage for gender reassignment surgery and related treatments under the Federal Employee
Health Benefits Program. John O’Brien, Covered Benefits for Gender Transition Serv. (U.S.
Office of Pers. Mgmt.), June 23, 2015. Transgender taxpayers are allowed to deduct the costs of
hormone replacement therapy and gender reassignment surgery as medical expenses.
O’Donnabhain v. Comm’r of Internal Revenue, 134 T.C. 34 (2010). Also, transgender inmates
are entitled to treatment for gender dysphoria, and denial of treatment could amount to cruel and
unusual punishment. Norsworthy v. Beard, 74 F. Supp.3d 1100 (N.D. Cal. 2014). Each of these
developments in health law reflect “the evolving professional consensus that treatment may be
medically necessary to address a diagnosis of gender dysphoria.” O’Brien, supra.
B. Because of Rite’s Absence for Gender Reassignment Surgery to Treat Gender
Dysphoria, She Was Unable to Perform the Functions of Her Job.
An employee is unable to perform “where the health care provider finds that the
employee is unable to work at all or is unable to perform any one of the essential functions of the
employee’s position.” 29 C.F.R. § 825.123 (2013). Further, an employee who is absent for
treatment is considered unable to perform the essential functions of her job. Id. As diagnosed by
her doctor, Rite’s gender reassignment surgery was a medically necessary treatment. This
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rendered her bedridden to allow for recovery and made her unable to go to work.
Neither the text of the statute, nor the regulation, mention that there must be a medical
necessity for the treatment of a serious health condition. However, some courts have recognized
this requirement. Williams v. Shenango, 986 F. Supp. 309, 317 (W.D. Pa. 1997) (finding that
Congress designed the FMLA as a minimum standard for unpaid leave when required for
medical necessity); Brown v. Eastern Maine Medical Center, 514 F. Supp. 104, 113 (D. Me.
2007) (finding that an employee’s recurring tardiness because of sickness and depression will not
be interpreted as intermittent FMLA absent explanation that late arrivals are medically
necessary.) If this Court similarly determines that treatment must be medically necessary, then
Rite’s gender reassignment surgery was medically necessary.
The World Professional Association for Transgender Health (WPATH), an association
comprised of professionals who specialize in the highest standard of treatment and healthcare,
has defined the standard of care for individuals through their publication Standards of Care
(SOC) for the Health of Transsexual, Transgender, and Gender-Nonconforming People, Version
7. E. Coleman et al., Standards of Care (SOC) for the Health of Transsexual, Transgender, and
Gender-Nonconforming People, Version 7, 13 Int’l. J. Transgenderism 165 (2011). The SOC is
recognized by the American Medical Association, the American Psychiatric Association, and the
American Psychological Association as the authoritative standards. Norsworthy, 87 F. Supp.3d at
1170. According to this renowned association, treatment encompasses the assessment for and
administration of hormone therapy, gender identity expression, and finally sex reassignment
surgery. See Coleman et al., supra at 170. This treatment of “hormone therapy and surgery have
been found to be medically necessary to alleviate gender dysphoria.” Id.
Rite’s treatment is identical to the medically necessary treatment recognized by WPATH.
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With the supervision of Dr. Dreigh and Dr. Gee, Rite began hormone replacement therapy in
January 2013. R. at 5. She started presenting as a woman to express her true gender identity. R.
at 7. Rite’s treatment culminated with surgery on January 30, 2015. R. at 9. This sequence, most
importantly the gender reassignment surgery, is the medically recognized treatment for gender
dysphoria, and thus this Court should similarly find that this treatment is medically necessary.
The District Court erroneously held that Rite’s surgery was elective. Rite, 585 F. Supp.3d
at 25. Referencing the WPATH standards, “the guidelines also note that ‘sex reassignment
surgery is not...“elective,” “cosmetic,” or optional in any meaningful sense.’” Jennifer L.
Casazza, Sex Reassignment Surgery: Required for Transgendered Prisoners but Forbidden for
Medicaid, Medicare, and Champus Beneficiaries, 20 Wm. & Mary J. Women & L. 625, 628
(2014). This article further notes that “[s]imply because the surgery alters the physical
appearance of the body does not mean it is inappropriate as a means of treatment for a mental
disorder.” Id. at 629. Although Rite did alter her physical appearance through breast
augmentation and facial feminization surgery, and was able to express herself as her desired
gender identity, she was not completely alleviated of the depression, anxiety and other
significant distress coupled with her condition until she underwent gender reassignment surgery.
Therefore, the gender reassignment surgery cannot be categorized as simply an elective surgery.
Furthermore, medical professionals determine whether surgery is medically necessary,
not the courts. The regulation explicitly states that the health care provider is the determinative
factor on whether the operation is necessary and whether the individual is unable to perform her
job. 29 C.F.R. § 825.123 (2013). Judges are not medical experts, especially in an emerging area
involving transgender health. Thus, deference should be given to the opinion of health care
providers when determining that a treatment is necessary. It is not the role of the courts to
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determine whether surgery is necessary. Both Dr. Gee and Dr. Dreigh found that the surgery was
the appropriate treatment for Rite, and this Court should respect their judgment.
Rite’s medically necessary sex reassignment surgery caused her absence from work to
reach a full recovery. Dr. Dreigh advised Rite to stay in bed for one week, and that she could
resume daily activities in one to two weeks. R. at 9. Rite was consequently unable to come into
work and perform her essential job duties because her surgery incapacitated her. Rite’s absence
was not due to the depression and anxiety she suffered as a result of the gender dysphoria, but
rather for the treatment of her gender dysphoria. This treatment rendered Rite unable to perform
any daily functions, and additionally was required to avoid strenuous activities to recover,
therefore she meets the “unable to perform” standard.
C. Because Rite Met her Obligations to Beetz, she is Entitled to FMLA Job-Protected
Leave for Gender Reassignment Surgery.
Under the FMLA, an employee is required to provide notice of leave to her employer
when need for that leave is foreseeable. 29 U.S.C. § 2612(e) (2009). Giving notice to an
employer for qualified leave triggers the FMLA’s protection. Hurley, 746 F.3d at 1167. Rite
requested FMLA leave three months before her surgery, when Beetz’s policy only requires a
thirty-day notice. R. at 35. Rite also provided medical certification from Dr. Dreigh when
requested by Woods. R. at 8. Therefore, Rite met all obligations to qualify for FMLA leave.
CONCLUSION
For the aforementioned reasons, Rite respectfully requests this Court to AFFIRM the
Thirteenth Circuit’s holding that transgender people may not be discriminated against on the
basis of their gender identity under Title VII, and that gender dysphoria is a serious health
condition, including gender reassignment surgery as a necessary treatment for such condition.
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