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High court lets transsexual cop's win stand

Ann Rostow, PlanetOut Network

published Monday, November 7, 2005

The U.S. Supreme Court declined to review Monday the workplace discrimination case of a transgender Cincinnati police officer. The decision leaves intact a ruling in favor of the officer, Philecia Barnes, issued last March by the U.S. Court of Appeals for the Sixth Circuit.

At least four of the nine justices must agree to review a case in order for a petition to be accepted. The high court winds up hearing only a tiny fraction of the appeals it receives, but the Barnes case was one that some observers felt might make it to the docket.

At the heart of the case was the question of whether this country's main federal law against workplace discrimination, Title VII of the Civil Rights Act of 1964, protects transgender workers (and tangentially, gay workers) against sex discrimination. Neither "transgender" nor "sexual orientation" appears in the text of Title VII, which bars job bias because of religion, race, sex and other factors. But in 1989, the Supreme Court ruled that an employer who punishes a worker because he or she does not match gender stereotypes is guilty of sex discrimination under Title VII. Ignored in the early 1990s, that 16-year-old ruling is now gaining currency as more courts defer to the precedent in favor of gay and transgender plaintiffs.

Philecia Barnes was a Cincinnati policeman for over two decades before beginning a transition from Phillip to Philecia. In 1998, Philecia was working as a man, but living as a woman, when she took the sergeant's exam, placing 18th out of 105. She was then subjected to a stressful three-month probation, during which time she was monitored on a daily basis, forced to wear a mike, and rated on a six-page form designed specifically for her. At the end, she failed. According to court papers, Barnes was the only officer to fail probation during the seven years from 1993 to 2000.

Barnes convinced a federal jury that the Cincinnati police department did not approve of her gender presentation, and that her lack of masculinity and so-called "command presence" led to her demotion. On appeal, the Sixth Circuit agreed, ruling that Barnes had a legitimate claim of sex discrimination under Title VII. It was the second such ruling out of the Sixth Circuit, where a transgender fire fighter won the right to sue under Title VII in July of last year.

The Sixth Circuit may have made up its mind about the scope of Title VII, but the question remains unsettled as courts continue to head in conflicting directions. As more federal appellate rulings seek to interpret the high court's precedent in the context of LGBT plaintiffs, however, the pressure on the justices to review one of these cases will only increase.

For now, LGBT advocates can only be pleased that the Supreme Court justices are letting this victory stand.

Last modified: 12/24/13