Team # 33 NEW YORK LAW SCHOOL MOOT COURT ASSOCIATION

Team # 33
NEW YORK LAW SCHOOL MOOT COURT ASSOCIATION
Robert F. Wagner National Labor & Employment Law
Moot Court Competition
Spring 2016
IN THE
UNITED STATES SUPREME COURT
Docket No. 16-24
Beetz, Inc.,
Defendant-Petitioner
v.
Erika Rite,
Plaintiff -Respondent
ON APPEAL FROM THE UNITED STATES COURT OF APPEALS
FOR THE THIRTEENTH CIRCUIT
BRIEF FOR THE PETIONER
Counsel for Petitioner
February 15, 2016
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QUESTIONS PRESENTED
1. Whether a Respondent who only allege that she has been discriminated upon on the basis
of her sexual identity and transsexualism have cognizable claim under Title VII of the
Civil Rights Act of 1964, which prohibits discrimination “because of . . . sex.”
2. Whether gender dysphoria is a serious health condition entitling respondent to over a
month of unpaid FMLA leave?
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TABLE OF CONTENTS
QUESTIONS PRESENTED ......................................................................................................... I
TABLE OF CONTENTS ............................................................................................................ II
TABLE OF AUTHORITIES ..................................................................................................... III
STATEMENT OF THE CASE .................................................................................................... 1
PROCEDURAL HISTORY ................................................................................................................ 1
STATEMENT OF THE FACTS ........................................................................................................... 2
STANDARD OF REVIEW .......................................................................................................... 5
SUMMARY OF ARGUMENTS .................................................................................................. 6
ARGUMENT ................................................................................................................................. 7
I.
ALLEGED DISCRIMINATION ON THE BASIS OF SEXUAL IDENTITY DOES NOT FALL WITHIN THE
AMBIT OF A TITLE VII’S PROHIBITION ON DISCRIMINATION ON THE BASIS OF SEX. ....................... 7
a. The plain language and the statutory history of Title VII shows that that Title VII ought
to be interpreted narrowly to bar solely discrimination “for one’s natural biological
anatomy” and not gender identity or transgenderism............................................................. 8
b. The EEOC’s interpretation that Title VII protects individuals against discrimination on
the basis of sexual identity does not meet the requirement for judicial deference. ............... 17
II. THE RESPONDENT IS NOT ENTITLED OVER A MONTH OF UNPAID AND UNAPPROVED FMLA
LEAVE AS GENDER DYSPHORIA IS NOT A SERIOUS HEALTH CONDITION. ..................................... 18
a. Respondent’s Gender Dysphoria was Not a Serious Health Condition Because It Did
Not Significantly Impair Her Ability to Work. ....................................................................... 18
b. The Tax and Health Insurance Implications of Gender Dysphoria Are Irrelevant to its
FMLA Status. ......................................................................................................................... 21
CONCLUSION ........................................................................................................................... 22
II
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TABLE OF AUTHORITIES
Cases
Ashcroft v. Iqbal, 556 U.S. 662 (2009)........................................................................................... 6
Barker v. R.T.G. Furniture Corp., 375 F. App’x 966 (11th Cir. 2010) ........................................ 19
Boyd v. State Farm Ins. Co., 158 F.3d 326 (5th Cir. 1998) .......................................................... 19
Broadus v. State Farm Ins. Co., 2000 U.S. Dist. LEXIS 19919 (W.D. Mo. Oct. 11, 2000) .......... 9
But see, e.g., Smith v. City of Salem, Ohio, 378 F.3d 566 (6th Cir. 2004).................................... 10
Caskey v. Colgate-Palmolive Co., 535 F.3d 585 (7th Cir. 2008) ................................................. 19
Chandler v. Specialty Tires of Am. (Tenn.) Inc., 283 F.3d 818 (6th Cir. 2002) ........................... 20
Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 844, 104 S. Ct. 2778, 2782,
81 L. Ed. 2d 694 (1984) ............................................................................................................ 17
Corley v. United States, 556 U.S. 303 (2009)........................................................................... 8, 16
Cox v. Denny's Inc., 1999 WL 1317785 (M.D. Fla. Dec.22, 1999) ....................................... 10, 16
Dawson v. Bumble & Bumble, 387 F.3d 211 (2d Cir. 2005) ........................................................ 14
Diaz v. Pan Am. World Airways, Inc., 442 F.2d 385 (5th Cir. 1971) ..................................... 10, 11
Dobre v. Nat'l R.R. Passenger Corp., 850 F.Supp. 284 (E.D. Pa.1993); ............................... 10, 16
E.E.O.C. v. R.G. & G.R. Harris Funeral Homes, Inc., 100 F. Supp. 3d 594 (E.D. Mich. 2015) 15,
17
Etsitty v. Utah Transit Auth., No. 2:04CV616 DS, 2005 WL 1505610 (D. Utah June 24, 2005)
aff'd, 502 F.3d 1215 (10th Cir. 2007).................................................................................... 9, 15
Glenn v. Brumby, 663 F.3d 1312 (11th Cir. 2011) ....................................................................... 15
Grossman v. Bernards Township Bd. Of Edu., 1975 U.S. Dist. LEXIS 16261 (D.N.J. Sept. 10,
1975)............................................................................................................................................ 9
III
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Holloway v. Arthur Andersen & Co., 566 F.2d 659 (9th Cir. 1977)......................................... 9, 11
Hurley v. Kent of Naples, Inc., 746 F.3d 1161 (11th Cir. 2014) ................................................... 20
James v. Ranch Mart Hardware, 1994 U.S. Dist. LEXIS 19102 (D.C. Kan. Feb 22, 1994) ......... 9
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 1824, 36 L. Ed. 2d 668
(1973) holding modified by Hazen Paper Co. v. Biggins, 507 U.S. 604, 113 S. Ct. 1701, 123 L.
Ed. 2d 338 (1993). ....................................................................................................................... 8
O’Donnabhain v. Comm’r of Internal Revenue, 134 T.C. 34 (2010) ........................................... 22
Oiler v. Winn-Dixie Louisiana, Inc., 2002 WL 31098541 (E.D. La. Sept. 16, 2002) .............. 9, 16
Oncale v. Sundowner Offshore Servs., 528 U.S. 75 (1998) ................................................ 9, 13, 14
Perrin v. United States, 444 U.S. 37 (1979) ................................................................................... 8
Pivac v. Component Serv. & Logistics, Inc., 570 Fed. App’x. 899 (11th Cir. 2014) ................... 19
Powell v. Read’s, Inc., 436 F. Supp. 369 (D.C. Md. 1977) ...................................................... 9, 17
Pownall v. City of Perrysburg, 63 F. App’x 819 (6th Cir. 2003) ................................................. 18
Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) ........................................................... 9, 12, 13
Rite v. Beetz, Inc., 575 F.3d 185 (13th Cir. 2015). ......................................................................... 2
Rite v. Beetz, Inc., 585 F. Supp.3d 1 (S.D. Wgr. 2015). ........................................................ passim
Schoer v. Billington, 424 F. Supp. 2d 203 (D.D.C. 2006) ................................................ 10, 13, 15
Schwenk v. Harford, 204 F.3d 1187, 1202 (9th Cir. 2000)...................................................... 15, 16
Sebelius v. Cloer, 133 S. Ct 1886, 1889 (2013) ........................................................................ 8, 16
Shapiro v. United States, 335 U.S. 1 (1948) ........................................................................... 11, 12
Simonton v. Runyon, 232 F.3d 33, 38 (2d. Cir. 2000) .................................................................. 14
Smith v. Liberty Mut. Ins. Co., 569 F.2d 325 (5th Cir. 1978) ......................................................... 9
Smith v. Wynne, 494 Fed. App’x. 867 (10th Cir. 2012) ................................................................ 19
IV
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Sommers v. Budget Marketing, Inc., 667 F.2d 748, 749 (8th Cir. 1982) ............................ 9, 10, 11
Spearman v. Ford Motor Co., 231 F.3d 1080, 1085 (7th Cir. 2000) ............................................ 14
Stubl v. T.A. Syst., Inc., 984 F. Supp. 1075 (E.D. Mich. 1997) .................................................... 20
Sullivan v. Stroop, 496 U.S. 478 (1990) ....................................................................................... 16
Terry v. E.E.O.C., 1980 U.S. Dist. LEXIS 17289 (E.D. Wis. Dec. 10, 1980) ......................... 9, 17
Thorson v. Gemini, 205 F.3d 370 (8th Cir. 2000)......................................................................... 19
Tozzi v. Advanced Med. Mgmt., No. S00-2363, 2001 WL 1081175 (D. Md. May 24, 2001) ...... 18
Ulane v. Eastern Airlines, 742 F.2d 1081 (7th Cir. 1984) ............................................ 9, 10, 11, 17
Underwood v. Archer Mgmt. Serv., Inc., 857 F.Supp. 96, 98 (D.D.C. 1994) ......................... 10, 16
United States v. Vallery, 437 F.3d 626 (7th Cir. 2006) .................................................................. 8
Vasconcellos v. Cybex Intern., 962 F. Supp. 701 (D. Md. 1997) ................................................. 20
Volves v. Ralph K. Davis Medical Ctr., 403 F. Supp. 456 (N.D. Cal. 1975) aff’d mem., 576 F.ed
354 (9th Cir. 1978) ................................................................................................................ 9, 11
Wetzel v. Liberty Mut. Ins. Co., 511 F.2d 199, 2014 (3d Cir. 1975)............................................. 11
Statutes
29 U.S.C. § 2601 (2009) ............................................................................................................... 22
29 U.S.C. § 2612 (2009) ............................................................................................................... 18
42 U.S.C. § 2000e-2(a) (1964).................................................................................................... 1, 7
Regulations
29 C.F.R. § 825.113 (2013) .......................................................................................................... 22
Rules
Fed. R. Civ. P. 12(b)(5)................................................................................................................... 6
Other Authorities
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AMERICAN PSYCHIATRIC ASSOCIATION, DIAGNOSTIC & STATISTICAL MANUAL OF MENTAL
DISORDER (American Psychiatric Ass’n et al. eds. 5th ed. 2013). ............................................... 3
H.R. 3185, 114th Cong. (1st Sess. 2015) ...................................................................................... 11
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STATEMENT OF THE CASE
Procedural History
This action arose when Respondent, Erika Rite (formerly known as Eric Rite), filed suit
against the Petitioner and former employer, Beetz, Inc. (hereinafter “Beetz”). In the suit, the
Respondent alleged the Petitioner had violated Title VII of the Civil Rights Act of 1964
(hereinafter “Title VII”) when it passed over her for a promotion while she was in the process of
transitioning gender. 42 U.S.C. § 2000e-2(a) (1964); Rite v. Beetz, Inc., 585 F. Supp. 3d 1, *2
(S.D. Wgr. 2015). Additionally, the Respondent also alleged that she should have been granted
leave under the Family and Medical Leave Act of 1993 (hereinafter “FMLA”), when she took
thirty-five days of medical leave to recover from gender reassignment surgery. Rite, 585 F.
Supp.3d at *2. In this suit, the Petitioner sought compensatory and punitive damages under the
Title VII claim. Id. Additionally, Petitioner also sought back pay with interest, attorney’s fees,
and cost under the FMLA claim. Id.
Despite the Respondent’s allegations, the United States District Court for the Southern
District of Wagner granted Petitioner’s motions to dismiss both of these claims on August 5,
2015. Id. In its dismissal opinion, the court concluded that: (1) Title VII, as a matter of law, does
not prohibit discrimination on grounds of a person’s transgender identity or gender transition,
and (2) that gender dysphoria, the condition of identifying with a gender contrary to one’s birth
gender, does not qualify as a “serious held condition” under the FMLA. Id. at *4, fn. 3, and *21.
Subsequently, the District Court ruled that Respondent did not have a claim against the Petitioner
as: (1) the Respondent had no claim under Title VII, and (2) the Respondent did not have a claim
under the FMLA as the Petitioner had no obligation to provide the Respondent with any leave for
her surgery and subsequent recuperation. Id.
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The Respondent, appealed the above District Court ruling. Subsequently, on December
11, 2015 the United States Court of Appeals for the Thirteenth Circuit reversed the District
Court’s ruling and remanded the case. Rite v. Beetz, Inc., 575 F.3d 185, *22 and *30 (13th Cir.
2015). In its opinion, the Thirteenth Circuit questioned the Circuit Court’s narrow reading of the
text of Title VII and the FMLA. Id. at *24. Rather than adopt a narrow reading of both the
statutes, the Circuit adopted a more progressive reading of the law to allow it to adapt to social
views regarding sex identity and its related infirmities. Id. Specifically, the Circuit court held
that Title VII’s prohibition on discrimination based on sex includes the prohibition on
discrimination based on gender identity, and (2) the FMLA does provides coverage for treatment
of gender dysphoria, as it qualifies as a “serious health condition. Id. at 30.
In response to the Thirteenth Circuit’s ruling, the Petitioner filed a timely petition for
certiorari to this court. The Supreme Court issued a writ of certiorari on the petition and
scheduled the argument for the Spring Term of 2016. (R. at 40).
Statement of the Facts
The current actions arose out of Beetz, Inc., the Petitioner, decision to terminate its
employment relationship with Erika Rite, the Respondent, after she took an extended and
unapproved leave of absence. Specifically, the Respondent began her relationship with the
Petitioner in 2005, when she joined Beetz as a sales consultant after completing her MBA studies
with a concentration in marketing. Rite, 585 F. Supp. 3d at *3. The Respondent at the time of her
hiring represented herself as Eric Rite and as a man. Id. In her role as sales consultant, the
Respondent was responsible for creating new brands for Beetz, working with company investors,
and also meeting with the company’s sales partners. Id. The Respondent did well at her initial
position and was eventually promoted to the role of Lead Sales Consultant, where she received
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additional responsibilities. Id.
In December of 2012, the Respondent began consulting with psychotherapist Dr. Warren
Gee (hereinafter “Dr. Gee”) about anxiety and discomfort regarding her gender identity. Id. at
*3-*4. Although, gender non-conformity is not itself recognized as a mental illness. AMERICAN
PSYCHIATRIC ASSOCIATION, DIAGNOSTIC & STATISTICAL MANUAL OF MENTAL DISORDER
(American Psychiatric Ass’n et al. eds. 5th ed. 2013). Where clinically significant distress is
associated with gender non-conformity the patient may be diagnosed with gender dysphoria, a
condition defined as “a marked difference between the individual’s expressed/experienced
gender and the gender other would assign him or her.” Id. In the case of the Respondent, after
several weeks of sessions, Dr. Gee diagnosed her with gender dysphoria. Rite, 585 F. Supp. 3d at
*4. Upon her diagnosis and starting in January 2013, the Respondent began to identify as
transgendered. Although, no evidence shows that the Respondent took any action to inform the
Petitioner of her disposition at this time. Id. Around January 2013, the Respondent also began
taking medications for depression and anxiety. Id. Allegedly, in the following months after her
diagnosis, the Respondent also explored the option of receiving gender reassignment surgery, an
expensive medical procedure that she knew was not covered under the Petitioner’s Employee
Health Benefit Plan. Id. As a result of this decision to consider surgery, the Respondent at some
point began hormone replacement therapy to aid her physical and emotional transition into a
woman. Id. at *5.
Around November 2013, Andre Young, the Beetz’s founder and CEO, announced that
the company planned to promote a sales consultant to the position of Executive Distributor. Id. at
*5 -*6. At the time Mr. Young indicated that he was looking for individuals with the following
qualifications: 1) a person who worked for Beetz for a minimum of seven years; (2) had a strong
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performance record; and (3) can appropriate represent Beetz in the industry and to its customers.
Id. at *6. At the time of the declaration, Mr. Young considered the Respondent and another sales
consultant by the name of O’Shay Jackson as the top two candidates for the promotion. Id. Mr.
Young interviewed and reviewed the personnel record of both the Respondent and Mr. Jackson
in January 2014. During the interview the Respondent represented herself as a man in a
traditional suit and tie, but at the end of her interview told Mr. Young her intent to transition into
a woman and to have sex reassignment surgery at the end of 2014. Id. at *7. At the time of her
disclosure, Mr. Young did not make any kind of remarks or statements other than to thank the
Respondent for her candor. Id. Eventually, in February of 2014, Mr. Young announced that Mr.
Jackson would receive the promotion to Executive Distributor. Mr. Jackson’s qualification for
the role of Executive Distributorship at the time included: 1) a tenure at Beetz starting 2007, 2)
an MBA with a focus in finance, and 3) a stellar sales record with the company with a noted
eagerness for working with Beetz clients. Id. at *6; (R. at Appendix A.)
Despite not being promoted, the Respondent congratulated Ms. Jackson and continued to
work in her role as lead sales consultant. Id. at *8. Although, later in mid-February the
Respondent was informed by Mr. Young that he believed that it was in the best interest of the
company to transfer her to a department with “less public visibility.” Id. The Respondent did not
protest at this time and accepted a transfer to the Graphic Design Department, where she worked
as a graphic designer. Id. Despite not making any complaint, the Respondent claimed that at the
time of transfer she was outraged and believed the action was being taken due to her transgender
identity. Id. Although, in her new role, the Respondent received the same pay and compensation
as her previous position. Id.
Near the same time as her transfer, the Respondent was approved by Dr. Gee and a Dr.
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Romel Dreigh, her surgeon, to undergo gender reassignment surgery. After the approval from her
doctors, the Respondent talk to Tamika Woods, the Director of Human Resources at Beetz, to
see how she can take a medical leave. Id. At the time, Ms. Woods referred the Respondent to the
Beetz Employee Handbook for information about the company’s medical and sick leave policy.
Id. at *8-*9. Following this meeting, the Respondent applied in writing in November 1, 2014 for
FMLA leave. Id. at *9. The Respondent did so as she knew that she had expended her paid sick
leave for the year for hormone therapy sessions with Dr. Gee. Id. Due to complexity of her case,
the Respondent was told by Ms. Woods on November 7, 2014 that she would need to submit a
medical certification to support her claim. On November 8, 2014 the Respondent submitted her
forms as filled by Dr. Dreigh. Although, she did not hear back until November 13, 2014 when
she was told that her request was being forwarded to senior management for approval. Id.
After these events, the parties exchanged further communication. However, on January
30, 2015, without yet having received her FMLA approval, the Respondent decided to undergo
gender reassignment surgery. This decision proves disastrous, as on February 1, 2015, the
Respondent was contacted by Ms. Woods notifying her that her FMLA request had been denied.
Id. at *10. Despite receiving this message on February 8, 2016 and knowing that she planned to
be absent until March 6, 2015, the Respondent made no attempt to contact Beetz about her
condition. Due to her non-response, Beetz decided to terminate her employment relationship on
February 27, 2016. As a result of her termination, the Respondent filed a complaint with the
E.E.O.C. on March 13, 2016, who after their investigation issued the Respondent a right to sue
letter, which led to the current action. Id.at *11.
STANDARD OF REVIEW
The standard of review for the Appellate Court’s denial of petitioners’ motion to dismiss
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under Rule 12(b)(6) is de novo. Fed. R. Civ. P. 12(b)(6). Under Ashcroft v. Iqbal, to survive a
motion to dismiss the “complaint must contain sufficient factual matter . . . to ‘state a claim to
relief that is plausible on its face.’” 556 U.S. 662, 678 (2009); see also Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007) (holding that to survive a motion to dismiss a plaintiff must
present “enough facts to state a claim to relief that is plausible on its face.”).
SUMMARY OF ARGUMENTS
Title VII of the Civil Rights Act of 1964 prohibits discrimination because of race, color,
religion, sex, or national origin. Sex as used within this statute is intended by Congress to refer
solely to biological sex. Namely, only discrimination on the basis of a man being a man or a
woman being a woman is proscribed by the law. The basic support for this proposition comes
from the plain language of the word sex as used in 1967, the year of the Act’s passing.
Substantial support for this view can also be drawn from the statutory history and decades of
jurisprudence related to this provision of the law. Despite decades where the Courts have denied
Title VII protection to transsexuals and homosexuals, Congress has still yet to amend the law.
Based on the assumption that Congress is both aware of the law and its judicial interpretation, a
strong argument can be made that Congress has not express any intent to expand Title VII’s
protection beyond its previously established boundary. A particularly salient point as Congress
has rejected as early as 2015 to amend Title VII to proscribe discrimination on the basis of
sexual orientation or sexual identity. Given the clear intent of Congress, the E.E.O.C.’s position
does not deserve any deference by this court. Therefore, insofar as the Respondent has only pled
discrimination on the basis of her gender identity, she has not pled with sufficient facts in her
complaint to survive a 12(b)(6) motion to dismiss.
To be eligible for FMLA leave, respondent’s gender dysphoria must constitute a serious
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medical condition. In the context of mental illnesses, a serious medical condition is one that
significantly impairs an employee’s ability to work. Cases where employees suffered symptoms
similar to the respondent’s—anxiety and depression—but were still able to perform their job
duties have generally been found not to qualify them for FMLA leave. While respondent’s
complaint described the distress her gender dysphoria caused her, she made no allegations that it
ever impeded her ability to perform her job, and thus has failed to establish it as a serious
medical condition. While gender dysphoria is gaining increased attention throughout the legal
community, recent decisions and guidance on transgender medical care in the tax, health
insurance, and prison contexts is irrelevant to the goal of the FMLA, to balance the needs of
employers with those of working families. FMLA leave has traditionally been reserved for those
afflictions so severe that employees experience an inability to complete their jobs, and
respondent has not met this standard.
ARGUMENT
I.
ALLEGED DISCRIMINATION ON THE BASIS OF SEXUAL IDENTITY DOES NOT FALL WITHIN
THE AMBIT OF A TITLE VII’S PROHIBITION ON DISCRIMINATION ON THE BASIS OF SEX.
Title VII of the Civil Rights Act of 1964 makes it unlawful for an employer to
discriminate against an individual on the grounds of that individual’s “race, color, religion, sex,
or national origin.” § 2000e-2. Specifically, to make a claim of actionable discrimination a
plaintiff, the Respondent, must carry the burden of “establishing a prima facie case of . . .
discrimination . . . by showing (i) that he belongs to a [protected class]; (ii) that he applied and
was qualified for a job for which the employer was seeking applicants; (iii) that, despite his
qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and
the employer continued to seek applicants from persons of complainant's qualifications.”
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McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 1824, 36 L. Ed. 2d 668
(1973) holding modified by Hazen Paper Co. v. Biggins, 507 U.S. 604, 113 S. Ct. 1701, 123 L.
Ed. 2d 338 (1993). For the current action, the only issue to be determined by this court is
whether the Respondent belongs to a class of person protected by Title VII.
Furthermore, when a statute is unambiguous on its face, a fundamental cannon of
statutory interpretation “is that unless otherwise defined, words will be interpreted as taking their
ordinary, contemporary, common meaning.” Perrin v. United States, 444 U.S. 37, 42 (1979).
Additionally, the court’s inquiry “must cease if the statutory language is unambiguous and the
‘statutory scheme is coherent and consistent.’” Robinson v. Shell Oil Co., 519 U.S. 337, 340, 117
S. Ct. 843, 846, 136 L. Ed. 2d 808 (1997) citing to United States v. Ron Pair Enterprises, Inc.,
489 U.S. 235, 240, 109 S.Ct. 1026, 1030, 103 L.Ed.2d 290 (1989). Furthermore, “plainness or
ambiguity of statutory language is determined by reference to the language itself, the specific
context in which that language is used, and the broader context of the statute as a whole.” Id. at
341. Courts ought to defer to the plain language of the statute “unless doing so would frustrate
the overall purpose of the statutory scheme, lead to absurd results, or contravene clearly
expressed legislative intent,” United States v. Vallery, 437 F.3d 626, 630 (7th Cir. 2006), or
doing so would create surplusage. Corley v. United States, 556 U.S. 303, 314-15 (2009); Sebelius
v. Cloer, 133 S. Ct 1886, 1889 (2013).
a. The plain language and the statutory history of Title VII shows that that Title VII ought
to be interpreted narrowly to bar solely discrimination “for one’s natural biological
anatomy” and not gender identity or transgenderism.
The question of whether Title VII extends protection to transgendered individuals under
its prohibition on discrimination on the basis of sex is an issue of first impression in this court.
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However, the aforementioned question has been addressed numerous times by various Circuit
(Eighth, Seventh, Ninth, and Fifth) and District Courts. The majority of courts addressing this
question has generally held that transgenderism does not “fall within the protective purview of
[Title VII].” Sommers v. Budget Marketing, Inc., 667 F.2d 748, 749 (8th Cir. 1982). See also
Ulane v. Eastern Airlines, 742 F.2d 1081 (7th Cir. 1984); Volves v. Ralph K. Davis Medical Ctr.,
403 F. Supp. 456 (N.D. Cal. 1975) aff’d mem., 576 F.ed 354 (9th Cir. 1978); Holloway v. Arthur
Andersen & Co., 566 F.2d 659 (9th Cir. 1977); Smith v. Liberty Mut. Ins. Co., 569 F.2d 325 (5th
Cir. 1978) (refusing to extend Title VII protection to job applicant who had been denied because
he was considered “effeminate” by holding that “Congress by its proscription of sex
discrimination intended only to guarantee equal job opportunities for males and females” and
could not be extended without some Congressional mandate); James v. Ranch Mart Hardware,
1994 U.S. Dist. LEXIS 19102 (D.C. Kan. Feb 22, 1994); Terry v. E.E.O.C., 1980 U.S. Dist.
LEXIS 17289 (E.D. Wis. Dec. 10, 1980); Powell v. Read’s, Inc., 436 F. Supp. 369 (D. Md.
1977); Grossman v. Bernards Township Bd. Of Edu., 1975 U.S. Dist. LEXIS 16261 (D.N.J. Sept.
10, 1975). Even after Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) and Oncale v.
Sundowner Offshore Servs., 528 U.S. 75 (1998), various courts addressing the question continue
to hold that Title VII should be interpreted narrowly absent explicit Congressional instruction to
the contrary. See e.g., Etsitty v. Utah Transit Auth., No. 2:04CV616 DS, 2005 WL 1505610, at
*3 (D. Utah June 24, 2005) aff'd, 502 F.3d 1215 (10th Cir. 2007) (rejecting the 6th Circuit
expansive interpretation of Price Waterhouse and refusing to find that a claims based on
transsexualism are claims based on “the mere failure to conform to stereotypes” and are therefore
actionable); Oiler v. Winn-Dixie Louisiana, Inc., 2002 WL 31098541 (E.D. La. Sept. 16, 2002);
Broadus v. State Farm Ins. Co., 2000 U.S. Dist. LEXIS 19919 (W.D. Mo. Oct. 11, 2000)
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(holding that while Price Waterhouse makes sexual stereotyping actionable under Title VII it
remains “unclear, however, whether transsexual is protected from sex discrimination and sexual
harassment under Title VII.”); Dobre v. Nat'l R.R. Passenger Corp., 850 F.Supp. 284 (E.D. Pa.
1993); Cox v. Denny's Inc., 1999 WL 1317785 (M.D. Fla. Dec. 22, 1999); Underwood v. Archer
Mgmt. Serv., Inc., 857 F.Supp. 96, 98 (D.D.C. 1994). But see, e.g., Smith v. City of Salem, Ohio,
378 F.3d 566, 573 (6th Cir. 2004) (holding that “the approach in Holloway, Sommers, and
Ulane . . . has been eviscerated by Price Waterhouse.”); Schoer v. Billington, 424 F. Supp. 2d
203 (D.D.C. 2006) (holding that “[a] transsexual plaintiff might successfully state a Price
Waterhouse-type claim if the claim . . . arise from the employee’s appearance or conduct and the
employer’s stereotypical perceptions.”).
The core line of cases interpreting Title VII prohibition on discrimination on the basis of
“sex” involves either a plaintiff’s claim of discrimination on the basis of sexual orientation or
sexual identity. In both of these types of cases the courts have generally held that “for the
purpose of Title VII the plain meaning must be ascribed to the term “sex” in absence of clear
congressional intent to do otherwise.” Sommers, 667 F.2d at 750. Furthermore, as understood by
these courts the term “sex” as used in Title VII is limited to the “traditional concept of sex” or,
more specifically, the idea of “biological male or biological female” Ulane, 742 F.2d at 1085-87.
In support of this position, these courts generally rely on two primary line of arguments.
First, the courts often recognize that Title VII has little or no legislative history and,
therefore, has no evidence indicating that “sex” as used in the statute ought to be understood in
any manner beyond its plain-meaning. Specifically, as found and accepted by these courts, the
word “sex” was added to the statute one day before the House of Representative approved the
bill. Diaz v. Pan Am. World Airways, Inc., 442 F.2d 385, 386 (5th Cir. 1971); Wetzel v. Liberty
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Mut. Ins. Co., 511 F.2d 199, 2014 (3d Cir. 1975). Furthermore, it has been accepted by the courts
that the amendment was offered by a Representative who opposed the passage of the act as an
attempt to sabotage the bill. Diaz, 442 F.2d at 386; Ulane, 742 F.2d at 1085. Given the
circumstances and the dearth of debate and floor discussion about any broader understanding of
the term “sex,” these courts rightfully concluded that “Congress never considered nor intended
[Title VII to] apply to anything other than the traditional concept of sex.” Ulane, 442 F.2d at
1085. Specifically, the courts “generally recognized that the major thrust of the “sex”
amendment was towards providing equal opportunities for women.” Sommers, 667 F.2d at 750
citing to Baker v. California Land Title Co., 507 F.2d 895, 896 (9th Cir. 1974). Therefore, as
Congress does not indicate that it considered anything other than the traditional meaning of “sex”
when passing Title VII “transsexualism is not, nor was intended by the Congress to be,
proscribed by Title VII[.]” Volves, 403 F.Supp. at 456. See also, e.g., Holloway, 566 F.2d at 664;
Ulane, 742 F.2d at 1087.
Second, to further support the courts’ narrow interpretation of congressional intent, the
courts following Ulane notes that Congress have repeatedly attempted to amend Title VII to
include a prohibition on discrimination on the basis of “affectional or sexual orientation.” Ulane,
742 F.2d at 1085. Even more damning, as recent as 2015 Representative Cicilline of Rhode
Island introduced the Equality Act of 2015, that sought to include sex, sexual orientation, and
gender identity as prohibited basis for discrimination under the Civil Rights Act of 1964. H.R.
3185, 114th Cong. (1st Sess. 2015). Yet, despite these attempts Congress has failed to pass these
amendments each and every time. As Congress is presumed to be aware of the law and its
judicial construction, Shapiro v. United States, 335 U.S. 1 (1948), the failure of these
amendments indicates, that Congress despite being aware of the limitation of Title VII’s
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prohibition on discrimination on the basis of sex have nonetheless refused to amend to law to
extend that protection beyond the traditional notion of biological sex. Ulane, 742 F.2d at 1085.
Given the strong evidence of Congressional intent, it would be improper for this court to extend
Title VII protection to transsexuals or other persons. Specifically, as the Court in Ulane noted “if
the term ‘sex’ as it is used in Title VII is to mean more than biological male or biological female,
the new definition must come from Congress.” Id. at 1087.
Despite claims to the contrary the reasoning and holding on the Ulane line of cases
remains good law after the decision in Price Waterhouse and Oncale. Specifically, Oncale and
Price Waterhouse are cases that is both factually different from the current actions and their
holding should not be understood to extend Title VII protection to the situation presented in this
case. In the current action, the Respondent has explicitly claim that she is being discriminated on
the basis of her sexual identity. Namely, in the current action the Respondent allege that the
Petitioner discriminated against her on the basis of her transsexuality and not her sex when it
passed over her for a promotion and then subsequently transferred her out of the sales
department.
On the contrary to the current action, Price Waterhouse does not involve a transsexual
but rather a woman who was subject to discrimination on the basis of her failing to meet
stereotype associated with being a woman while being told that to advance her career she should
“walk more femininely, talk more femininely, dress more femininely, wear make-up, have her
hair styled, and wear jewelry.” Price Waterhouse, 490 U.S. at 233. In other words, the factual
situation in Price Waterhouse does not parallel the current case. Furthermore, even the Price
Waterhouse created cause of action does not apply in this case. Specifically, when this court held
that the Congress intended to “strike at the entire spectrum of disparate treatment of men and
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women resulting from sex stereotypes” through Title VII, it recognized that a plaintiff must still
“show that the employer actually relied on her gender in making its [discriminatory] decision.”
Id. at 250 (emphasize added). This last quote, demonstrates that even this court did not interpret
“sex” in Title VII to include sexual identity or sexual orientation, but rather only that identified
that sex stereotypes when they are evidence of underlying discrimination on the basis of gender,
then they be actionable discrimination under Title VII. This interpretation is consistent with this
courts noting that to sustain a claim under Title VII, “Congress meant to obligate [the plaintiff]
to prove that the employer relied upon sex-based considerations in coming to its decision.” Id. at
242 (emphasis added). See also, Schoer, 424 F. Supp. 2d at 211 (noting that a Price Waterhousetype claim requires a showing that discrimination “actually arise from the employee’s
appearance or conduct and the employer’s stereotypical perceptions [of masculinity or
femininity]” and that a claim of discrimination solely based on disclosure of gender dysphoria
and intent to transition is not enough.)
Likewise, as the lower court properly reasoned, the Respondent incorrectly relied on
Oncale v. Sundowner when trying to argue that this court should proscribe discrimination on the
basis of transsexuality as a “comparable evil[.]” 523 U.S. at 79. Specifically, Oncale was a case
involving a male employee who was subjected to significant sexual harassment and physical
assault by other male employees. Id. at 78. The plaintiff in Oncale did not allege that he had been
discriminated against due to sexual orientation or sexual identity but rather solely because he was
male. Id. In other words, the factual disposition of Oncale bears no similarity to the current
action. Furthermore, the holding of Oncale did not expand the meaning of “sex” as understood in
Title VII but only that “nothing in Title VII necessarily bars a claim of discrimination ‘because
of . . . sex’ merely because the plaintiff and the defendant are of the same sex.” Id. Specifically,
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Justice Scalia notes that in a Title VII sex discrimination claim, “[t]he critical issue, . . . ,
[remains] whether members of one sex are exposed to disadvantages terms or conditions of
employment to which members of the other sex are not exposed.” Id. at 80. In so noting, the
case’s holding that same sex discrimination maybe actionable under Title VII should only apply
where the allege discriminatory conduct occurs as a result of a person’s biological sex and
contrary to how the discriminator treats the same conduct in a person of a different biological sex
than the victim.
The above interpretations of this court’s ruling in Price Waterhouse and Oncale tracks
the view of most courts addressing the issue of whether Title VII provides protection to
transsexual solely on the basis of their gender identity or gender orientation. For instance, in
Dawson v. Bumble & Bumble, the Second Circuit held that despite Price Waterhouse an avowed
homosexual hair stylist cannot “bootstrap protection for sexual orientation into Title VII” and
fails in her claim of sexual discrimination when she cannot proffer evidence that her termination
occurred because of her failure to conform to gender stereotype: “(1) through behavior or (2)
through appearance” as the employer did not take any adverse action due to her appearance or
even had a dress code for its employees. 387 F.3d 211, 218-21 (2d Cir. 2005) citing to Simonton
v. Runyon, 232 F.3d 33, 38 (2d. Cir. 2000). Likewise, in Spearman v. Ford Motor Co., the
Seventh Circuit held that a homosexual employee who was sexual harassed by his co-workers
because of their “suspicion of [his] sexual orientation [and] their hostility to his perceived
homosexuality” does not establish a prima facie case under Title VII and Price Waterhouse
because these required that “the evidence as a whole creates a reasonable inference that the
plaintiff was discriminated because of his sex.” 231 F.3d 1080, 1085 (7th Cir. 2000).
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Even in some of the cases that the Thirteenth Circuit cites to support the proposition that
Price Waterhouse expanded Title VII protection to transsexual tend to hold the exact contrary
view. For instance, in Schoer v. Billington, where the D.C. District Court held that a transsexual
may have a cognizable Title VII claim must still show disparate treatment, as compared to
similarly situated person of a different sex, because “Price Waterhouse does not create a Title
VII claim for sex stereotyping in the absent disparate treatment.” 424 F. Supp. 2d at 211.
Similarly, in E.E.O.C. v. R.G. & G.R. Harris Funeral Homes, Inc., where the court found that the
E.E.O.C. has sufficiently pled sexual discrimination on behalf of a transsexual victim, it only did
so because it pled that the victim had been discriminated because of more than just his
transsexualism as “[t]here is no Sixth Circuit or Supreme Court authority to support the EEOC's
position that transgender status is a protected class under Title VII.” 100 F. Supp. 3d 594, 599
(E.D. Mich. 2015). Additionally, in Glenn v. Brumby, 663 F.3d 1312 (11th Cir. 2011) and
Schwenk v. Harford, 204 F.3d 1187, 1202 (9th Cir. 2000); two other cases that the Thirteenth
Circuit cited to support the proposition that transsexual receive protection under Title VII
involved different laws and statute. Particularly, Glenn involved discrimination on the basis of
transsexuality in the context of a Fourteenth Amendment challenge, while Schwenk involved
discrimination on the basis of transsexuality in a state law. These cases only provide dicta in so
far as it addresses the definition of Title VII’s prohibition on sex discrimination post Price
Waterhouse. Overall, a review of all the cases involving a transsexual Title VII post Price
Waterhouse will demonstrate that most courts remain adamant in holding that transsexuality
absent disparate treatment or conduct attributable to discrimination on the basis of biological sex
does not pled sufficient facts to establish a prima facie case under Title VII. See e.g., Schoer, 424
F. Supp. 2d at 211; R.G. & G.R. Harris, 100 F. Supp. 3d at 599; Etsitty, 2005 WL 1505610;
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Oiler, 2002 WL 31098541; Dobre, 850 F.Supp. 284; Cox, 1999 WL 1317785; Underwood, 857
F.Supp. 96.
This holding is particularly persuasive given that many courts that have held that
transsexuals should receive Title VII protection tries to distinguish gender and gender identity as
being separate from sexual orientation. See, Schwenk, 204 F.3d at 1202 (arguing that the Gender
Motivated Violence Act (GMVA) and Title VII both “prohibit discrimination based on gender as
well as sex.). In making this distinction they tried to argue that even if sexual orientation is not a
protected class, sexual identity per Price Waterhouse and the GMVA can be included in the unamended Title VII’s protected class because the term “sex” and “gender” have become
interchangeable. Id. This interpretation is clearly inconsistent with the rule against interpreting a
statute and creating surplusage. See, Corley, 556 U.S. at 314-15; Sebelius, 133 S. Ct at 1889. As
holding “gender” and “sex” as being interchangeable would mean that one of these words is
simply surplusage in the GMVA. If nothing else, considering that the GMVA demonstrates
Congress’ ability to write a statute to protect transsexuals yet Congress has not done so for Title
VII, should instead be seen as evidence of Congress’ unwillingness to extend Title VII’s
protection. Since if Congress intended to extend Title VII protection to transsexuals and those
discriminated on the basis of sexual identity, then it would not have rejected of the Equality Act
of 2015, as described above. See, Sullivan v. Stroop, 496 U.S. 478, 484 (1990) (noting that the
same terms used in inter-related programs can be a strong indication of Congress’ intent in
regard to its definition). The failure of the Equality Act should be unequivocal evidence of
Congress not intended sex as used in Title VII to include sexual identity. Rite, 585 F. sup.3d at
*5.
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b. The EEOC’s interpretation that Title VII protects individuals against discrimination on
the basis of sexual identity does not meet the requirement for judicial deference.
When administrative agency enforces a law, these agencies may have their own
interpretation of the meaning of the law and its provision. While courts have recognized that
“considerable weight should be accorded” to an administrative agency’s interpretation of the law,
the courts does not give these interpretations deference where they are “arbitrary, capricious, or
manifestly contrary to the statute.” Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S.
837, 844, 104 S. Ct. 2778, 2782, 81 L. Ed. 2d 694 (1984). Specifically, where “the intent of
Congress is clear, that is the end of the matter; for the court” and it “must give effect to the
unambiguously expressed intent of Congress” Id. at 843.
As explain above, the express intent of Congress in Title VII is clear. The plain-meaning
of Title VII simply does not provide protection to individuals on the basis of sexual identity. See
e.g., Ulane, 742 F.2d at 1085-87. This interpretation is consistent with two decades of legal
jurisprudence and also consistent with the E.E.O.C.’s historical interpretation of the statute. See
e.g., Powell, 436 F. Supp. At 371; Terry, 1980 U.S. Dist. LEXIS 17289. Given Congress clear
intent to not protect individuals against discrimination on the basis of sexual identity, the
E.E.O.C.’s administrative regulation in this case is both arbitrary and manifestly contrary to the
statute. See e.g., R.G. & G.R., 100 F. Supp. 3d at 599. Therefore, this court and the lower courts
owe no deference to the E.E.O.C.’s position. As stated in Ulane, expanding Title VII is well
within the authority of Congress, who has shown, they are capable and able doing so. However,
absent stronger indication of intent to change the law, the courts should be wary of extending the
current statute beyond its plain-language.
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II.
THE RESPONDENT IS NOT ENTITLED OVER A MONTH OF UNPAID AND UNAPPROVED
FMLA LEAVE AS GENDER DYSPHORIA IS NOT A SERIOUS HEALTH CONDITION.
Under the Family Medical Leave Act of 1993, eligible employees may take 12
workweeks of unpaid, job-protected leave to care for a “serious health condition.” 29 U.S.C. §
2612 (2009). It is undisputed that respondent is an eligible employee and Beetz an employer
covered by the FMLA. A “serious health condition” is an illness, injury, impairment or physical
or mental condition that involves inpatient care or continuing treatment by a health care provider.
Id. § 2611(11). However, many opinions have mudded the issue by implying that the latter two
conditions—inpatient care and continuing treatment by a health care provider—are proof of the
existence of a serious health condition, rather than FMLA leave requiring both a serious health
condition and either of the latter two prongs. Before FMLA leave can be justified, the impatient
care or ongoing treatment must be precipitated by a serious health condition; otherwise elective
and cosmetic surgeries would constitute serious health conditions, when in fact they do not. Tozzi
v. Advanced Med. Mgmt., No. S00-2363, 2001 WL 1081175, at *1 (D. Md. May 24, 2001)
(holding for an employer that denied FMLA leave to an employee who underwent reconstructive
surgery following a bilateral mastectomy to treat cancer); Pownall v. City of Perrysburg, 63 F.
App’x 819 (6th Cir. 2003) (holding against an employee who requested FMLA leave to undergo
surgery to remove a ruptured breast implant). While the respondent did receive both inpatient
care and ongoing treatment for her gender dysphoria, because gender dysphoria is not a serious
health condition, the respondent was not eligible for FMLA leave.
a. Respondent’s Gender Dysphoria was Not a Serious Health Condition Because It Did
Not Significantly Impair Her Ability to Work.
A serious health condition in the context of mental disorders is one that significantly
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impairs the individual’s ability to work. Whether an individual has a serious health condition is a
mixed question of law and facts. Thorson v. Gemini, 205 F.3d 370, 377 (8th Cir. 2000). FMLA
leave has been consistently denied in cases in which employees’ mental disorders did not impair
them from functioning in the workplace. Pivac v. Component Serv. & Logistics, Inc., 570 Fed.
App’x. 899 (11th Cir. 2014) (finding that an employee’s anxiety and depression lasting two
weeks and involving a single visit to a psychiatrist was not a serious health condition); Boyd v.
State Farm Ins. Co., 158 F.3d 326 (5th Cir. 1998) (holding that an employee’s stress and anxiety
could not be a serious health condition when not corroborated as such by two psychiatrists who
treated him at the time); Smith v. Wynne, 494 Fed. App’x. 867 (10th Cir. 2012) (holding against
an employee who received only three or four outpatient visits to treat anxiety, depression, and
situational stress).
In Caskey v. Colgate-Palmolive Co., 535 F.3d 585 (7th Cir. 2008), the employee had
previously been granted FMLA leave for an earlier period of depression-related symptoms,
including distress, shaking, and heart-racing, for which her treating physician suggested she take
time off work. Id. at 589. However, the court rejected her claim for FMLA leave for the time
period at issue because she provided no evidence that she had suffered any incapacity, visited a
health care provider more than twice, or been on a regimen of continuing treatment. Id. at 591.
Bolstering this assessment, her treating physician specifically stated that the employee had no
work restrictions at that time. Id. Caskey demonstrates that mental disorders span a spectrum of
severity, and that before the point at which they affect an employee’s ability to complete work,
they are ineligible for FMLA leave.
Even in Barker v. R.T.G. Furniture Corp., 375 F. App’x 966 (11th Cir. 2010), where the
employee’s anxiety was sufficiently serious to cause him to need to take brief breaks from work
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and for his psychiatrist to prescribe him medication, the court found no evidence of a serious
health condition. Id. at 968. The court’s finding was premised on the absence of any evidence of
the employee’s “inability to work or perform the functions of his job”. Id. In Hurley v. Kent of
Naples, Inc., 746 F.3d 1161 (11th Cir. 2014), the employee suffered depression, anxiety, and
panic attacks, but still was found ineligible for FMLA leave because these symptoms did not
incapacitate him to the point of being unable to work. Id. at 1168. The court noted that “the
FMLA does not extend its potent protection to any leave that is medically beneficial leave
simply because the employee has a chronic health condition.” Id.
Mental disorders have been considered serious health conditions only in cases where they
posed a severe, significant impairment to an employee’s ability to work. In Chandler v. Specialty
Tires of Am. (Tenn.) Inc., 283 F.3d 818 (6th Cir. 2002), the employee’s serious health condition
consisted of severe depression and hospitalization following a failed suicide attempt. Id. at 825.
In Vasconcellos v. Cybex Intern., 962 F. Supp. 701 (D. Md. 1997), the employee’s severe
nervous disorder, insomnia, tremors, severe chest pain, and panic attacks following an assault by
a coworker that left her unable to perform her job for more than three days were recognized as a
serious health condition. Id. at 703, 705-706. In Stubl v. T.A. Syst., Inc., 984 F. Supp. 1075 (E.D.
Mich. 1997), the court found evidence of a serious health condition where the employee was
suffering a “prolonged grief reaction” following the suicide of his teenage son, which prompted
the employee’s physician to recommend a leave of absence because he could not complete the
functions of his job. Id. at 1088. Moreover, both Vasconcellos and Stubl are distinguished by
being instances of acute-onset mental afflictions, precipitated by a particular traumatic event
rather than a life-long or chronic condition, suggesting that chronic conditions must meet an even
higher standard of severity to mandate FMLA leave.
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Respondent has not provided any evidence that her gender dysphoria inhibited her from
performing her job. In fact, she was thriving at work, recognized for her strong relationships with
Beetz investors and as a top candidate for the position of Executive Distributor. Acknowledging
that Beetz’s health insurance would not cover her surgery, she began saving up for the procedure
as soon as she decided to have it, showing thoughtfulness and patience indicative of a stable
mental state. During her interview with Beetz’s CEO about the promotion to Executive
Distributor, she initiated the conversation about her gender identity, handling the subject of her
gender dysphoria with tranquility and grace. She was able to complete the rest of her transition
publicly and in a high-profile transition without suffering any worsening of the stress caused by
her condition. While her gender dysphoria may have been distressing to her, none of the
allegations in the respondent’s complaint show any symptoms of her diagnosis rising to the level
that would be required to demonstrate that it interfered with her ability to perform her job and
thus was a serious health condition.
b. The Tax and Health Insurance Implications of Gender Dysphoria Are Irrelevant to its
FMLA Status.
In overturning the district court’s opinion, the Thirteenth Circuit looked to both U.S.
Office of Personnel Management guidance regarding the Federal Employee Health Benefits
Program and US Tax Court precedent on the deductibility of medical expenses usually
associated with transgender individuals. The court also looked to a jurisdictional split on how
transgender prison inmates’ medical needs are dealt with. However, gender dysphoria’s role in
the context of health insurance, tax deductions for medical expenses, and the prison system are
irrelevant to whether it should be considered a serious medical condition under the FMLA.
The question of whether gender transition procedures should be covered by health
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insurance does not speak to the definition of a serious medical condition in the FMLA context,
because the FMLA was specifically conceived of as supplementary to the ordinary uses of sick
leave and health insurance by employees. 29 U.S.C. § 2601 (2009). Most health insurance is far
more broad in its reach than FMLA leave, covering treatment for ailments the FMLA does not,
like colds, the flu, earaches, upset stomachs, etc. 29 C.F.R. § 825.113 (2013). Similarly, the
decision in O’Donnabhain v. Comm’r of Internal Revenue, 134 T.C. 34 (2010) is about
deducting medical expenses, also not the purpose of the FMLA. The issue is respondent’s
absence from work, not who should be required to cover the cost of her medical care.
Additionally, while recent cases about the medical care of transgender inmates may
provide for early legal considerations of gender dysphoria, the prison setting makes these
precedents irrelevant. As wards of the state, prisoners can seek medical care from only one
source. This makes evaluation of their medical needs distinctly different from that of everyday
employees. Individuals whose medical conditions are not found to require FMLA leave have the
option of finding new employment with more flexible sick leave policies or accruing additional
non-FMLA sick leave at their current employer. Thus, to “balance the demands of the workplace
with the needs of families,” as is the purpose of the FMLA, a different calculation is needed to
assess a serious medical condition under the FMLA than to inquire as to the medical needs of
prisoners. 29 U.S.C. § 2601 (2009).
CONCLUSION
The Supreme Court should reverse the Thirteenth Circuit’s denial of the Petitioner’s
motion to dismiss. Under the current law, the Respondent does not have a cognizable claim
under Title VII of the Civil Rights Act of 1964. As the Respondent has not plead with any
sufficient particularity in the lower courts any form of discrimination other than on the basis of
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her gender identity or transgenderism, her claim is not covered within Title VII’s ambit of
protection. Additionally, Respondent’s gender dysphoria does not constitute a serious medical
condition because it did not substantially interfere with her ability to perform her job.
Respectfully submitted,
Counsel for the Petitioner
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