6th CIRCUIT PANEL FINDS TRANSSEXUALS PROTECTED BY TITLE VII AND EQUAL PROTECTION CLAUSE

6th Circuit did not make any immediate move in that direction in Smith’s case, it seems likely that the City of Salem will try to get some sort of reconsideration, especially given the egregious facts in the case. Selena Johnson, the plaintiff in the earlier case, was born a man but presented herself and was hired as a woman, and had not had gender reassignment surgery. According to the brief per curiam opinion, “After receiving complaints that Johnson had used both the men’s and women’s restrooms, Johnson’s employer informed her that she could not return to work until it received a note from her doctor stating whether she was male or female and whether there was any reason she should be using the restroom of the opposite gender.” The employer ultimately decided that Johnson’s driver’s license, which designated her as male, should settle the matter, and ordered her to use only the men’s room. On this basis, Johnson refused to return to work and was discharged for absenteeism. Johnson sued under Title VII and the Americans With Disabilities Act (ADA). Judge Economus granted the employer’s motion to dismiss, finding that Title VII does not forbid discrimination against transsexuals and that the ADA specifically states that “transsexualism” is not a condition covered by the statute as a disability. Johnson argued on appeal that the precedents the trial court relied upon had been superseded by Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), where the Supreme Court held that sexstereotyping is a form of sex discrimination prohibited by Title VII. Economus rejected that argument. Without any substantive discussion, the 6th Circuit said in its unpublished opinion that after hearing oral argument and studying the briefs filed by the parties, “we are not persuaded that the district court erred in dismissing the complaint.” Jimmie Smith’s case was a bit different. Smith, also born male, had a successful employment history with the Salem Fire Department, rising to the rank of lieutenant. Smith was diagnosed as suffering from gender dysphoria and began to feminize his dress and appearance. When this raised questions with co-workers and comments that Smith was not “masculine enough,” Smith notified the immediate supervisor about the diagnosis and the likelihood that eventually Smith would probably get a sex-change operation. Although Smith asked that this be kept confidential, the supervisor immediately communicated the information to upper management and the top officials in the city government quickly became involved. According to the opinion for the 6th Circuit by Judge R. Guy Cole, Jr., the Fire Chief and the city’s top lawyer convened a meeting with the mayor, the city auditor, the city service director, and the city safety director, for the specific purpose of figuring out how to get rid of Smith. The meeting settled on a strategy to provoke Smith into resigning by requiring a battery of psychological exams, hoping that Smith would balk at participating and could then be discharged for insubordination. The safety director did not dissent at the meeting, but called Smith after the meeting to inform him about this plan, calling it a “witch hunt.” Smith promptly retained an attorney, who tele