In a recent case from Georgia, a plaintiff who had been diagnosed with Gender Identity Disorder (“GID”), was fired from her job with the state of Georgia when she made it known that she was undergoing gender transition from male to female. The stated reason for termination was that plaintiff’s “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 [plaintiff’s] co-workers uncomfortable.”   

Plaintiff sued alleging sex discrimination, but not under Title VII, which applies to both public and private employers, but solely under the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution (which applies to public employers, not private employers). The Court wasted no time in marshalling the caselaw starting with the Supreme Court’s Price Waterhouse case in 1989 which held that discrimination based upon gender stereotype is sex-based discrimination.  

Asking the question “whether discriminating against someone on the basis of gender non-conformity is sex-based discrimination under the Fourteenth Amendment, the Court answered in the affirmative, holding that this was so whether it was described as being sex or gender based. The Court stated that the employer’s discriminatory intent was amply demonstrated by direct deposition testimony.

Although this ruling applies solely to public employers because it was filed under the Fourteenth Amendment, private employers should take note of the clear signal given by the Court that “[i]f this were a Title VII case, the analysis would end here” – after the clear direct discriminatory evidence was adduced.