Wednesday, June 02, 2004
City of Salem Shocker So, you ask, why is this Smith v. City of Salem Sixth
Circuit case an "exciting appellate decision," eh?
This is the case of Jimmie Smith, a Salem firefighter and male transsexual who
told his superiors he planned eventually to have sex reassignment surgery. The
city's decision-makers then "schemed" to get him to resign or be subject to
firing. A lawsuit ensued, and yesterday the unanimous three-judge panel held
actions taken against Smith constituted a prima facie case of sex discrimination
under Title VII and opened up the defendants to a 42 U.S.C. Sec. 1983 action
based on an "alleged equal protection violation."
First -- whoa! -- this is the U.S. Court of Appeals for the Sixth Circuit (not
Ninth) issuing an opinion that includes this golden paragraph:
After Price Waterhouse, an employer who discriminates against women because, for
instance, they do not wear dresses or makeup, is engaging in sex discrimination
because the discrimination would not occur but for the victim's sex. It follows
that employers who discriminate against men because they do wear dresses and
makeup, or otherwise act femininely, are also engaging in sex discrimination,
because the discrimination would not occur but for the victim's sex.
City of Salem, slip op., at 13.
Second, the City of Salem is not even 20 minutes south of where I grew up in
Third, the District Court judge who gets a talkin' to by Judge R. Guy Cole Jr.
is none other than Judge Peter Economus, the local federal trial judge in
Youngstown. Cole wrote for the appellate bench:
[T]he district court repeatedly places the term "sex stereotyping" in quotation
marks and refers to it as a "term of art" used by Smith to disingenuously plead
discrimination based on transsexualism. . . . As we do now, the Supreme Court
[in Price Waterhouse] noted the practice with disfavor, stating:
. . . [T]he placement by Price Waterhouse of "sex stereotyping" in quotation
marks throughout its brief seems to us an insinuation either that such
stereotyping was not present in this case or that it lacks legal relevance. We
reject both possibilities.
Id., slip op., at 16. That court doesn't sound too happy with the lower court to
Finally, I noticed among the attorneys involved in the case one Randi Barnabee.
Barnabee, I have learned, is fighting to make a difference for transgendered and
transsexual people in a not-so-friendly corner of the world. Barnabee
unsuccessfully argued a case (which I discussed here) before Trumbull County
Probate Judge Thomas Swift and the Eleventh District Court of Appeals seeking a
marriage license for a post-operative female-to-male transsexual and his to-be
wife. Because they were both born as females, Judge Diane Grendell wrote for a
divided court that this would have constituted an illegal same-sex marriage.
Barnabee, however, had the City of Salem on the run as well, and yesterday
Jimmie Smith won a great victory for equality.