Would It Kill You To Look Like A Man? Transgender Employees in Indiana

Judge Robert L. Miller, a Reagan appointee who sits on the federal district court for the Northern District of Indiana, has recently issued yet another curious decision in the case of Creed v. Family Express Corp. Amber Creed was fired from her job in 2005 because she is transgender. Judge Miller's first decision, in 2007, which I will call Creed I, was very curious indeed, creating a considerable amount of confusion about what precisely is protected under the federal employment discrimination law, Title VII of the Civil Rights Act of 1964. His second decision, which came out a few weeks ago (Creed II, 2009 WL 35237) is even more hopelessly befuddled. Curiouser and curiouser!, cried Alice. These decisions are a case study of why the proposed federal Employment Non-Discrimination Act should include protection for both sexual orientation and gender identity, for it demonstrates that the current federal law of employment discrimination is a patchwork welter that creates confusion for both employees and employers.

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Transgender Discrimination Court Update: Creed

A search of the Westlaw database reveals a few interesting developments in transgender discrimination law. In this post, I will discuss Creed v. Family Express Corp, 2007 WL 2265630 (N.D.Ind. 2007), a decision of the federal district court for the Northern District of Indiana, issued August 3, 2007. The decision, unfortunately, portends more confusion for employers, rather than less. This court is in the circuit that handed down the opinion in Ulane v. Eastern Airlines, Inc., 742 F.2d 1081 (7th Cir.1984), which held that Title VII does not cover transsexuals. The continuing vitality of Ulane has been questioned recently by some courts, in light of Supreme Court decisions that have broadened the scope of Title VII sex discrimination.

Other courts, however, while concluding that gender expression discrimination is prohibited under Title VII, have suggested that Ulane may still be good law. Still others have held that transgender plaintiffs may never be protected. In the Creed opinion, the Court holds to a tricky middle path, concluding that specific allegations of discrimination based on transgender status are not covered by Title VII, but allegations of gender expression discrimination are covered.


The Creed opinion discusses a lawsuit filed by Amber Creed against her employer for job discrimination. Ms. Creed began working as a sales associate in 2005. She was hired as a male, and wore the polo shirt and slack provided to all employees. Over the year, she sometimes wore clear nail polish and black mascara, trimmed her eyebrows, and, in the fall, wore her hair in a more feminine style. The company's HR Director met with her, and told her she could no longer present herself in a feminine manner at work. Ms. Creed told them that she was transgender and was going through the process of gender transition. When she refused to present herself in a more masculine way at work, she was terminated. Ms. Creed's letter of termination stated she was fired because she didn't comply with its dress and grooming code.

Ms. Creed's complaint alleged she was discharged because she didn't conform to gender stereotypes, a cause of action first validated in Price-Waterhouse v. Hopkins, 490 U.S. 228, 251 (1989). Judge Miller, however, cited Ulane in denying the plaintiff's claim. He rejected the theory, validated in other federal circuits, that the Supreme Court's ruling in Price Waterhouse “eviscerated” Ulane. The judge said that the Price Waterhouse Court focused on the situation in which initiative, effort, and aggressiveness were rewarded with partnership for men, but the company then punished women who exhibited these “macho” traits. It was the disparate treatment of men and women by sex stereotype that violated Title VII, according to this court.

By contrast, Judge Miller points to the fact that two of the counts of the complaint alleged only that she was discriminated against “on the basis of her transgender status.” He dismissed these counts on the grounds that they failed to explicitly allege that her discharge was triggered by stereotypical perceptions of a particular gender, a requirement under Price-Waterhouse according to Judge Miller.

However, two other counts did explicitly allege this, stating that she was fired because her employer perceived her “to be a man who did not conform with gender stereotypes associated with men in our society, or because it perceived Plaintiff to be a woman who did not conform with gender stereotypes associated with women in our society .” Judge Miller acknowledged that the complaint implies she was terminated as a result of these stereotypical perceptions, rather than simply her gender dysphoria. Therefore, he refused to dismiss those counts, allowing the lawsuit to move forward.

In so doing, Judge Miller seems to hold that, if the plaintiff bases her allegations on her gender identity, she is not protected. However, if she bases her allegations on her gender expression, then she is protected. Am I the only one confused here?

In the near future, I will post updates on the court opinions in Etsitty, Schroer and Hispanic AIDS Forum.

Prom dress code lawsuit moves forward in Indiana

Although this particular dress code involves a high school prom, it has potential applications to dress codes generally.

From NWITimes.Com:
"Though he could have worn a nice women's pantsuit without incident, Kevin "K.K." Logan was refused entrance to his senior prom in 2006 when he arrived wearing a pink ankle-length gown.

The transgender Gary student responded with a federal lawsuit, saying administrators trampled on his right to free expression and his right to be free from discrimination on the basis of "gender identity" at a public school that receives federal funds.

In it's formal response to the lawsuit Friday, attorneys for the district said federal courts do not have jurisdiction over the issue because they don't have the power to dictate local school dress codes, especially when constitutional rights have not been violated.



"(Logan) has failed to identify how a male student has a constitutionally protected right to wear a dress to a prom," wrote Ragen Hatcher, attorney for the district."

Read the rest of the news item here.

This is an interestesting case legally because it relies primarily on First Amendment freedom of expression. The school based the exclusion on its policy that deems inappropriate any "clothing/ accessories that advertise sexual orientation, sex, drugs, alcohol, tobacco, profanity, negative social or negative educational statements." The complaint includes also includes equal protection and Title IX as bases for relief.

See Lambda Legal's statement and the complaint here.

Local Ordinances and State Preemption

A few days ago, prompted by developments in Indiana, I blogged the question of state preemption of city laws prohibiting discrimination based on gender identity or sexual orientation, though in a rather cursory fashion. (Check out that blog for a basic explanation of the issue -- this gets complicated.)

I've done some more digging since then, and found out that there is no statute or court opinion in Indiana that explicitly prohibits Indiana cities from creating a local commission. In fact, there is a state statute that explicitly permits the creation of such commissions. However, the matter is not simple in the Hoosier State, and it would be going too far to say that the issue is clear.

Are State Statutes Preempted?
Before I get to Indiana, I have a broader question that came to mind. Why doesn't the federal anti-discrimination statute (Title VII) pre-empt state statutes on the subject?

I found a simple answer: Title VII itself specifically states that it does not preempt broader state or city law on the subject. (42 U.S.C. 2000e-7) It would have been nice if the Indiana civil rights statute made a similar pronoucement, but no such luck.

Are Local Civil Rights Commissions Permitted?
As far as establishing local civil rights commissions, it's a state issue, so each state can make a different rule. The states are split on the issue, with some allowing and some not. Courts in Utah, Nebraska, Maryland and Delaware say no, so the question of whether local commissions may include gender identity doesn't even arise. However, courts in Washington, Illinois and Kentucky say yes, and it's there that the issue of preemption is active.

In regard to the specific question of adding sexual orientation/gender identity to the city ordinance, courts in DC, Kansas, NY, and Fla say yes, whereas Wisconsin, California, Massachusetts, Minnesota and Georgia say no. [These cases involved regulation of private businesses, and I note that application to city workers alone is far easier to justify. If you want to look this stuff up, I got my information from Professor David Barron's article "Reclaiming Home Rule." (116 Harvard Law Review 2255, 2352)]

Most recently, this issue was raised in Allentown, PA, and the Pennsylvania appeals court said that Allentown's statute protecting gender identity and sexual orientation was A-OK. (Hartman v. City of Allentown, 880 A.2d 737 (Pa.Cmwlth. 2005)

What about Indiana?
There are about a dozen preemption decisions in Indiana discussing various types of statutes, with some decisions saying yes and some saying no. It all comes down to whether or not you think that the state civil rights statute is "intended to occupy the field completely," thus leaving no room for the addition of gender identity and sexual orientation. Fortunately, the Indiana statutory scheme creating the state civil rights commission provides some clues.

The Indiana Civil Rights statute provides explicitly that cities may establish an ordinance to establish a local civil rights commission:

Indiana Code 22-9-1-12.1
(b) Any city, town, or county is hereby authorized to adopt an ordinance or ordinances, which may include establishment or designation of an appropriate local commission, office, or agency to effectuate within its territorial jurisdiction the public policy of the state as declared in section 2 of this chapter without conflict with any of the provisions of this chapter.

So there is no problem with having a civil rights commission in an Indiana city. The statute explicitly says that the establishment of the commission is "without conflict with any of the provisions of this chapter."

But what's this about "to effectuate within its territorial jurisdiction the public policy of the state as declared in section 2 of this chapter." What does section 2 say? Here it is:

Indiana Code 22-9-1-2
Sec. 2. (a) It is the public policy of the state to provide all of its citizens equal opportunity for education, employment, access to public conveniences and accommodations, and acquisition through purchase or rental of real property, including but not limited to housing, and to eliminate segregation or separation based solely on race, religion, color, sex, disability, national origin or ancestry, since such segregation is an impediment to equal opportunity. Equal education and employment opportunities and equal access to and use of public accommodations and equal opportunity for acquisition of real property are hereby declared to be civil rights.

(The rest of section 2 is long, so I omit it here.)

Let's start with the first clause of subsection (a), which says that the public policy of Indiana is to provide all of its citizens equal opportunity for education, employment, etc. There is no limitation by protected categories, such as race, religion, etc. Gender identity and sexual orientation, or anything else, could certainly be part of the public policy as far as this part goes. Reading only this part, a local commission could very reasonably interpret its job as promoting equal opportunity on grounds including gender identity and sexual orientation. This alone gives the city council the right to add gender identity and sexual orientation.

Of course, there is always a counter-argument. One could argue that there is a limitation to specific protected categories because the subsection goes on to say that the public policy also includes elimination of segregation based solely on "race, religion, color, sex, disability, national origin or ancestry." This clause contains a specific list of grounds upon which segregation is to be eliminated. Mentioning a specific list, particularly a long one like this, is sometimes considered to exclude other items, although a court might allow another item that is closely related to the items on the list.

Are gender identity and sexual orientation related to the items in the list? Some will say no, because the list covers identity categories only, and not behavior or lifestyles. Others will say yes, because being gay or transgender is an identity rather than a choice, and, either way, the list includes religion, which is a choice. Depends on your bias. Fortunately, since I have no bias, I'm guessing that the more logical position is that the statute will allow inclusion of gender identity and sexual orientation.

But wait....we're not done yet. I see two more twists, and one favorable to the GLBT crowd and one unfavorable.

Indiana Code 36-1-3-3
...any doubt as to the existence of a power of a unit (county, city or township) shall be resolved in favor of its existence.... This rule applies even though a statute granting the power has been repealed.

This statute means that even though there is some small doubt as to the power of the city to include gender identity or sexual orientation, the question should be resolved in the city's favor. This shows that the exercise of such power by the city is proper.

On the other hand....

Indiana Code 36-1-3-8
(a) Subject to subsection (b), a unit (meaning a county, city or township) does not have the following: (7) The power to regulate conduct that is regulated by a state agency, except as expressly granted by statute.

According to this statute, the city must stick to the express power granted by the statute. Since the statute did not expressly grant the power to regulate gender identity or sexual orientation, the city does not have the power. This shows that the exercise of the power by the city is improper.

Ow, I think I hurt my brain.

The Law of Oz
All this is to say that the Law is like the famous Scarecrow of Oz.

[Those in Indiana can review the script at the Lilly Library at Indiana University, which owns one of the largest collections of Ozania in the world.]

DOROTHY: Follow the Yellow Brick Road? Follow the Yellow....?
SCARECROW (points to left): It's pleasant down that way, too.
DOROTHY: That's funny. Wasn't he pointing the other way?
SCARECROW: (points in both directions at once) Of course, people do go both ways!
DOROTHY: Why...you did say something, didn't you?
SCARECROW shakes his head no, then nods yes
DOROTHY: Are you doing that on purpose, or can't you make up your mind?

SCARECROW: That's the trouble. I can't make up my mind. I haven't got a brain -- only straw.

(Cue music: "If I Only Had A Brain")

South Bend IN mayor suggests executive order

In light of the defeat of the proposed ordinance to ban discrimination based on gender identity and sexual orientation, Mayor Stephen Luecke has promised an executive order adding sexual orientation and gender identity to the city's Equal Employment Opportunity policy, which will protect city workers from discrimination.

The reasoning behind this is instructive from a business point of view. "Having these protections in place would have provided South Bend with a valuable tool to attract and retain the best possible employees to work in local businesses and corporations," said Randy Studt of Lafayette's Citizens for Civil Rights. "South Bend has to compete with regional communities of similar size for businesses and jobs, many of which already adopted similar workplace protections."

These communities are Bloomington and Indianapolis, which prohibit discrimination in housing, employment, and public accommodations based on sexual orientation and gender identity.

This comment tracks a point made in my dissertation, that cities adopting gender identity ordinances are responding to concerns about urban revitalization and attracting business to the city:

Public employers adopting transgender HR policies show similar patterns. Non-discrimination policies are viewed as a means of attracting a highly educated labor force, a larger business tax base and a more affluent population. This is referred to as the 3T’s formula, which stands for Technology, Talent and Tolerance (Florida 2003). The gay population has been used, in this connection, as a measure of the “creative class” within geographic areas and as part of an index to determine their attractiveness to high-tech businesses. The creator of this index, Dr. Richard Florida of Carnegie Mellon University, is a sought-after lecturer and consultant for cities seeking to revitalize, and his theory is named as number 2 on Harvard Business Review’s list of breakthrough ideas for 2004. (Richard Florida Creativity Group
2004)

The interviews with town officials adopting such ordinances illustrates the point. [Codes are used intead of names to preserve confidentiality of respondents.]

The town of BNO adopted a proposal including "gender identity" in its human relations ordinance in May, 2002, affecting both municipal and private employees. The ordinance was not adopted in response to specific concerns about any transgender employees. In fact, there are no known transgender employees for the municipality, and "gender identity" was not the primary focus of the policy adoption in this case. It was added as an afterthought to a proposal to add "sexual orientation" to the human relations ordinance, at the request of two gay organizations supporting the "sexual orientation" proposal. These organizations provided the language used in the ordinance, and it was apparently used without change from the original. Its
benefits are perceived as being a "benchmark for major employers" and making a
"statement" to national and international employers and their employees at a
time when some employers are leaving the area.

The policy has been heralded to the local gay community. However, while there is some talk of sending a bulletin to major employers, they are waiting until the election cycle is over. While the language adopted included a definition of gender identity, the definition itself is a bit confusing, and the meaning is unclear to the person who has the job of enforcing it, particularly with regard to bathrooms and crossdressing.

There were disagreements before the ordinance was adopted as to what situations
it might cover, but there was no resolution of these issues. In fact, after the human relations ordinance was amended, it was not perceived to be necessary to take the official step of including it in the administrative personnel policy of the municipality. However, it has been added to the EEO statement included on publications and job advertisements. The only concern expressed about the policy is its vagueness and the need for testing in the courts.

There was opposition to the proposal generally, but the opponents did not perceive gender identity as different in any important way from sexual orientation, and the opposition was primarily against adding sexual orientation. He disparaged the opposition as religious fanatics. In fact, the proposal was a bipartisan effort, and the person who shepherded the proposal through the council was a conservative Republican, who did so because this was "one of the Mayor's issues."

The small town of OJ is an old town, settled in the early 1700s. The town's main business now is its shopping and tourism industries. It now attracts many to shop for antiques, art, crafts and curios, and has "bed and breakfast" inns, fine dining, and a nearby vinyard. It has 200 art galleries. It conducts historical tours, boat rides on the nearby river, and carriage rides. It also has symphony, ballet, theater and other
cultural landmarks not found in the larger surrounding area. It is generally
considered a very tolerant place, and has many gay residents. It boasts that it
offers its visitors the experience of escape into the arts.

The respondent explicitly stated that the town did not need this policy, as there is no discrimination against gay people in the town, and a number of town officials
are gay. Rather, he viewed as a "political statement" designed to hold the town up as a model of tolerance to the rest of the state. This tolerance was viewed as attracting business to the town in the form of shopping tourists.

A public official in another city had similar thoughts:

R: Well I think it's showing that it is an inclusive place for employees and we believe that over time it will bring businesses here because there is going to be a more diverse, more open workforce in the area…One of the reasons it did pass unanimously, and we did have some of the businesses step in and say, y'know this is important to us, we've been (inaudible). Just last month, um we had the city council pass an ordinance adopting the state's first ever domestic partner registry. Besides passing unanimously with no discussion whatsoever on the floor when it came to a vote, because we had kinda y'know really worked out (inaudible), we had letters of support from the major businesses in town, not only the larger employers but then also from some of the more, the smaller yet more powerful or influential businesses as well, and there was absolutely no problem, all of the council, and we do have a partisan council, some democrats and some republicans, and it went through absolutely, with great support.

As a matter of fact, it was originally, a draft was approved, back in May, and
the only comments that were made were several of the council persons felt it was
necessary to speak out in support to get it onto the record.

The clearest statement was by this respondent from QJL:

R: And you know what? That brings people into the city…to live, I mean, not as tourists…Look, we have gay people living and thriving here, who feel comfortable opening up businesses, buying houses, raising families …all of the economic benefits. I mean the gay and lesbian community in the city has grown to be that part of the city that is the most adventuresome in terms of rehab-ing neighborhoods, and not without controversy, because it means moving people out. But at any rate rehab-ing
neighborhoods, opening up businesses, I suspect without knowing that half the new restaurants in the city, it's like the eating capital of the east coast now, are owned by, by typically, gay men, I mean, these are the guys opening up restaurants, and so if that brings money into the city, we have an active gay tourist bureau in the city, and gay people come to the city that have money, so they're spending money, raising revenues, paying my salary, which for my grandchildren is very important. So the overall economic benefit to the city is anytime you have a situation where you broaden the number of people who feel comfortable living and working and doing business in the city, the more people are going to be living and working and doing business in the city. Simple as that.

Interestingly, the needs spoken of by these respondents are not the needs of transgender employees, but needs of the employers themselves. The interviews suggest that the policies are intended to benefit employers by conferring a legitimacy that, among private employers, serves recruitment and retention of non-transgender employees, and among public employers, serves to create an environment that attracts an educated labor force, the businesses that require them, and the money that will hopefully follow. The needs of transgender employees are secondary.

South Bend, IN rejects ordinance

"Human rights amendment fails, 5-4 in South Bend
Council nixes sexual orientation, gender identity measure."

Following the vote, Catherine Pittman, a member of South Bend Equality, which fought for the bill's passage, said the group was disappointed but undeterred. "We're going to keep coming to Common Council," Pittman said. "There's no other place to go. We're going to continue to bring our concerns here."

Councilmember Ann Puzzello said No Special Rights, a group opposed to the bill, has said repeatedly it is "lovingly opposed" to the legislation. But Puzzello said it doesn't make sense to oppose equality. "We cannot lovingly oppose this right. It's discrimination and certainly has nothing to do with love," she said.

Councilmember David Varner said he felt the ordinance would create a protected class. Dieter said he felt the ordinance was shaky since there was no unified opinion on enforceability. The definition of sexual orientation is too broad, Kuspa said, and if passed could discriminate against those morally opposed to homosexuality. Councilmember Timothy Rouse repeated the oath of office he took as a council member, which he said didn't include making history or becoming a "trailblazer."

Council members exchanged strong words during the afternoon personnel and finance committee meeting. Varner said the city should wait until something is done on a state or federal level. "You're talking about sweeping it under the rug and forgetting about it," Kelly said. "No, sir," Varner replied.

"You know as well as I do, David, the way the state and federal government operate," Councilmember Roland Kelly said. "We have to start somewhere and I think it's important that we start locally. ... It's important to me we make a statement about human rights."

News: South Bend, Indiana ordinance set for hearing

A public hearing on the hotly debated and followed amendments to change the human rights ordinance of South Bend, Indiana, to include civil rights protection based on gender identity and sexual orientation is scheduled for July 10.

If passed, South Bend would join Bloomington, Indianapolis and Marion County in protecting transgender employees. To date, only one major Indiana-based employer, Cummins Inc., is listed by HRC as having gender identity protections.

Indiana is headquarters to 14 Fortune 500 companies, including Wellpoint, Eli Lilly, Cummins, NiSource, Conseco, Guidant, Zimmer Holdings, Simon Property Group, Brightpoint, Steel Dynamics, Vectren, Hillenbrand Industries, Biomet, and Marsh Supermarkets

News: Transgender Suits Increase, South Bend, IN considers ordinance

The link above is an article by Law.com, discussing an increase in employment discrimination suits nationally by transgender employees.

South Bend Tribune: The council will be considering a proposal to include transgender people in the human rights code.

News: Indiana law, Colorado bill

The Bloomington, Indiana council approved transgender protections last night.

In addition, the Colorado Senate yesterday approved Senate Bill 81, which includes transgender employment protections. Governor Owens vetoed a similar measure last year. Opponents argued the measure could lead to frivolous complaints and lawsuits based on "perceived" discrimination. Currently, transgender protections are in place in Boulder and Denver.

News: Bloomington, Indiana ordinance

An ordinance amending the Bloomington Municipal Code to recognize gender identity has been introduced. It would define gender identity as meaning "a person's actual or perceived gender-related attributes, self-image, appearance, expression or behavior, whether such characteristics differ from those traditionally associated with the person's assigned sex at birth."