Supreme Court avoids transsexual Ohio officer case
By GINA HOLLAND
Associated Press Writer
WASHINGTON- The Supreme Court refused Monday to consider shielding employers from discrimination lawsuits by transsexuals, dodging a workplace rights fight.
The court's refusal to intervene leaves in place a victory for Cincinnati Officer Philecia Barnes, who was born Phillip Barnes.
A federal appeals court upheld a jury's finding that Barnes was a victim of discrimination, under a federal civil rights law. The city had been ordered to pay the officer $320,000, and pay another $550,000 in attorney fees.
Barnes, a 24-year veteran of the Cincinnati police force, dressed as a man at work but a woman during off-hours in 1999 when the officer was demoted. Barnes sometimes wore makeup to work and had manicured nails.
Richard Ganulin, one of the city attorneys, told justices that employers should be protected from discrimination lawsuits based on "transsexual and homosexual characteristics." The city maintains the demotion was for professional reasons.
Had the court agreed to hear the case, arguments would have been scheduled in the spring, in time for two justices named by President Bush to weigh in. At issue was the scope of the 1964 Civil Rights Acts, which protects people from sex or race discrimination.
Sexual orientation is not covered in the law, but justices were asked to deal with a related issue: sex stereotyping of transsexual workers.
A transsexual is a person who has undergone a sex change operation or whose sexual identification is with the opposite sex.
The case would have been a follow-up to a 1989 Supreme Court decision which made it more difficult for employers to win lawsuits accusing them of sexual stereotyping and other bias. That case involved a woman who argued she was denied promotion because her supervisors thought she did not act feminine enough.
Justice Sandra Day O'Connor played a key role in that case. She sided with the woman and wrote a separate opinion that gave guidelines for lower courts to follow. Victims, she wrote, must show that "an illegitimate criterion (such as sexual stereotyping) was a substantial factor" in the employer's personnel decision.
Bush has named appeals court Judge Samuel Alito to replace the retiring O'Connor, and some civil rights groups oppose the nomination. Another Bush nominee, Chief Justice John Roberts, was confirmed in time for the start of the Supreme Court's term last month. Roberts replaced Rehnquist, who had voted against the female worker in the 1989 case.
There are no good estimates about the number of transgender workers in the United States because of their fears of going public, said Lamda Legal attorney Cole Thaler.
"Trans employees are particularly vulnerable to harassment and discrimination because they deviate from employers' ideas of what men and women are supposed to look and act like," said Thaler, a lawyer with the gay-rights group that is not involved in the Barnes case.
The 6th U.S. Circuit Court of Appeals in Cincinnati said that Barnes was subjected to an unusual daily evaluation by other sergeants and required to wear a microphone at all times
The case is Cincinnati v. Barnes, 5-292.