Sewell Brumby, head of the OLC, was not pleased by this news, and he fired Ms. Glenn, stating that
her "intended gender transition was inappropriate, that it would be disruptive, that some people would view it as a moral issue, and that it would make Glenn’s coworkers uncomfortable." (slip op. at 4).
Ms. Glenn sued in federal court, alleging that Brumby discriminated against her because of her sex (specifically, for her failure to conform to male stereotypes concerning clothing) in violation of the equal protection clause of the 14th amendment to the U.S. Constitution. The district (trial) court granted Ms. Glenn summary judgment on the sex-discrimination cause of action (Ms. Glenn had also alleged she was denied equal protection because of her medical diagnosis of Gender Identity Disorder, but the court ruled against her with regard to that issue).
On appeal, the circuit court found that "discrimination against a transgender individual because of her gender non-conformity is sex discrimination," noting a split among circuits. (id. at 9). The court went on:
discrimination on this basis is a form of sex-based discrimination that is subject to heightened scrutiny under the Equal Protection Clause. Ever since the Supreme Court began to apply heightened scrutiny to sex-based classifications, its consistent purpose has been to eliminate discrimination on the basis of gender stereotypes.
And then, just in case there is still any doubt: "We conclude that a government agent violates the Equal Protection Clause’s prohibition of sex-based discrimination when he or she fires a transgender or transsexual employee because of his or her gender non-conformity." (slip op. at 16).
Applying the "heightened scrutiny" standard for determining liability for such discrimination, the court then concluded that Brumby's termination of Ms. Glenn was not substantially related to any sufficiently important governmental interest. On the contrary, her termination was based on Brumby's assertion that transitioning was "unnatural" and "unsettling." In the end, then, the court found that Ms. Glenn was entitled to "all the relief that she seeks."
So kudos to Ms. Glenn, and the other folks on the front lines. It's because of her courageous actions, and the actions of others like her, that the LGBTQ community is making steady legal headway, one small step -- and one precedent -- at a time