Here’s a Court That Gets It

Those whose lives are considered to be out of the mainstream, which seems to be more homogeneous by the minute these days, can find it as much of a challenge to educate the judicial system as it is to educate everyone else around them. They may not have much positive to say about the supposed qualities of judges to be learned, objective and fair. Every once in a while, however, a case comes along that demonstrates just how far we’ve traveled, when you can read the opinion and say that the court “gets it.” In Barnes v. City of Cincinnati, a case involving a transgendered cop suing her employer, the 6th Circuit Court of Appeals demonstrates an understanding of gender stereotyping and transgendered issues that is unfortunately all too uncommon in the judicial system.

Philecia Barnes used to be known as Phillip, and was a pre-operative male-to-female transsexual back in 1998 and 99, when the events of her lawsuit arose. On duty as a member of the police force in Cincinnati, Barnes was Phillip, but off duty, Barnes was living as a female, Philecia. Unbeknownst to her employer, Barnes was taking hormone treatments as part of transitioning from male to female. However, the Cincinnati vice squad would take photographs of Barnes when she was out and about living as Philecia.

In 1998, Barnes took an exam that was a necessary prerequisite to be promoted to sergeant, and placed 18th out 105 applicants. Barnes then began the process of becoming a sergeant, successfully completing 80 hours of training before being promoted to sergeant and continuing field training on a probationary basis. Barnes was subjected, however, to much more scrutiny than the other probationary sergeants. Barnes’ every move was scrutinized, as she was was not allowed in the field without supervision, required to wear a microphone and forced to travel in a car with a camera. Every single day during a three-month period, Barnes was evaluated by her superiors, who used a six-page form created just for her and no other candidates. One sergeant later testified that the purpose of the program was “to scrutinize [Barnes] and to document every mistake that [s]he made so that [s]he could be failed on probation.” (See Barnes v. City of Cincinnati at page 2.)

There seems little doubt that Barnes was treated this way because of the failure to conform to gender stereotypes. Although not fully transitioned during this time, Barnes had a French manicure, had arched eyebrows and came to work wearing makeup or lipstick on some occasions, as she was living as a woman off-duty. The lieutenant to which Barnes was assigned during the training period spoke negatively about the number of lesbians on the Cincinnati police force, and a colonel told Barnes that he needed to stop wearing makeup and to act more masculine. One of the areas in which Barnes consistently earned low scores was “command presence,” which was such a subjective factor that no one on the force could agree upon exactly what it meant, whether it was “project[ing] a certain image of confidence” or having the respect of his subordinates. As Barnes’ expert later testified, the subjectivity of the factor allowed it to be used to stereotype employees. (See Barnes v. City of Cincinnati at page 2.)

The intense scrutiny got to Barnes, who suffered a great deal of stress and had to be evaluated by a department psychologist. His scores in the probationary program continued to be mediocre. Ultimately, Barnes was the first sergeant to ever fail probation and to be demoted back to police officer in seven years, although another probationary officer had lower scores, but was not demoted. Barnes then sued the City of Cincinnati for sex discrimination, based upon the demotion. (See Barnes v. City of Cincinnati at page 3.)

In February 2003, Barnes was awarded $150,000 in compensatory damages (damages for pain and suffering), $140,000 in front pay and $30,511 in back pay, along with attorneys fees to compensate the lawyers who brought this relatively novel case. (See BNA’s Jury Verdict for Police Sergeant Trainee Demoted During Gender Transformation.) The City appealed to the Sixth Circuit Court of Appeals, claiming that Barnes’ case did not constitute sex discrimination, and that the jury’s award should have been overturned.

However, the 6th Circuit disagreed, holding that Barnes “was a member of a protected class by alleging discrimination against the City for his failure to conform to sex stereotypes.” Their ruling was based on a Supreme Court ruling from 1989, Price Waterhouse v. Hopkins, which held that a discrimination claim could be based upon sexual stereotypes. This case is increasingly being used on behalf of transgendered plaintiffs who are successfully using existing sex discrimination law to cover discrimination on the basis of gender identity, which in most states, is not currently protected under law. (See our site’s page on Gender Identity Discrimination.)

We are also proud to report that the 6th Circuit affirmed the attorneys’ fee award to Barnes’ attorneys, Alphonse A. Gerhardstein and Jennifer L. Branch. Barnes’ attorneys received what is known as a “multiplier” or fee enhancement of 1.75 times the amount of the fees that they requested, because of the “novelty and difficulty” of the case and because of the “immense skill requisite to conducting this case properly.” (See Barnes v. City of Cincinnati at page 3.) This award was based in part on the affidavits of two Cincinnati attorneys, one of whom happens to be the co-founder of Workplace Fairness, Paul H. Tobias, who stated that few lawyers locally or nationally would take such a case.

Interestingly, the decision was written by Federal District Judge David W. McKeague, currently a judge in the Western District of Michigan, but who has been nominated to join the court for whom he wrote this opinion. Given that the law in this area is still developing, this was a courageous opinion for McKeague to author, as it is unlikely to please some of the conservatives angling for his nomination. While the opinion is legally sound and consistent with previous precedent in the 6th Circuit, it nonetheless may invite claims that McKeague is too liberal to be appointed, or too much of an “activist judge.”

McKeague’s opinion isn’t perfect: he refers to Barnes as “he” throughout the opinion. The Associated Press Stylebook recommends that those writing about transgender people

Use the pronoun preferred by the individuals who have acquired the physical characteristics (by hormone therapy, body modification, or surgery) of the opposite sex and present themselves in a way that does not correspond with their sex at birth. If that preference is not expressed, use the pronoun consistent with the way the individuals live publicly.

However, given the common-sense sensitivity of the rest of the opinion, the Court may be given the benefit of the doubt, as there may be some confusion about how to refer to events occuring while Barnes was in transition and living publicly as a member of both genders. According to Barnes, the transition was a 11-year process, culminating in surgery and a name change in 2001. (See Associated Press article.)

Currently, 79 million live in a place that bans discrimination against transgender people. Ten years ago, only 9.7 million Americans lived in a jurisdiction that banned such discrimination. (See NGLTF Glass Nearly Half Full Press Advisory.) However, in those states without explicit discrimination bans (all but Minnesota, Rhode Island, California, New Mexico, and Illinois), transgendered employees who suffer discrimination based upon gender stereotypes must look to the courts for relief, which happens much more slowly and is much more costly to achieve.

The Barnes opinion is an important precedent, as it recognizes the bias and stereotyping that can run rampant in such a conservative occupation, and the intense scrutiny to which anyone who doesn’t conform can be subjected. It’s not yet clear whether McKeague’s opinion will affect the outcome of his nomination, as there are certainly a number of other factors contributing to his fitness as a nominee. However, it is certainly refreshing that Barnes’ case wasn’t sacrificed at the altar of judicial politics: that Judge McKeague’s desire to become a member of the Sixth Circuit didn’t outweigh his adherence to the law and existing circuit precedent.

More Information:

Workplace Fairness:
Your Rights: Gender Identity Discrimination
(recently updated to reflect this case and other legal developments)

Transgender Law and Policy Institute:
Litigation: Case Law
Non-Discrimination Laws that include gender identity and expression

National Center for Lesbian Rights:
Federal Gender Non-Conformity Cases
State Cases

Transgender at Work:
Workplace Guidelines for Transgendered Employees

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Madeline Messa

Madeline Messa is a 3L at Syracuse University College of Law. She graduated from Penn State with a degree in journalism. With her legal research and writing for Workplace Fairness, she strives to equip people with the information they need to be their own best advocate.