April 1, 2005

Sixth Circuit upholds officer's TG discrimination award

Court says again: 1964 Civil Rights Act includes transgender and some gay bias

by Eric Resnick

Cincinnati--A $322,000 award to a transsexual police officer demoted by the city of Cincinnati was unanimously upheld by the Sixth Circuit Court of Appeals on March 25.

The decision reinforces the circuit�s position that Title VII of the 1964 Civil Rights Act protects transsexuals from discrimination based on sex-stereotyping, and creates more opportunity for the other eight circuits to follow suit.

The circuit first reached the landmark conclusion in June in a case involving a transsexual firefighter. That case, Smith v. City of Salem, was the first such decision in the nation. Both cases result from the 1989 U.S. Supreme Court decision Price Waterhouse v. Hopkins, which defined sex-stereotyping in a way that made the later suits possible.

The three judge panel made seven references to the earlier case as it affirmed all the decisions made by the lower court in favor of Officer Philecia Barnes.

Barnes filed the suit in October, 2000 after being demoted in 1999 from the rank of sergeant after the city began, according to one of her colleagues at the trial, �to scrutinize [her] and to document every mistake [she] made so that [she] could be failed on probation.�

Barnes, who is also a former Marine sergeant and Desert Storm veteran, had a clean record as an officer for 18 years, then scored 18th out of 150 applicants on the promotion exam. She also holds a master�s degree in social work and was part of the unit that deals with issues of mental health.

Before the promotion, Barnes, who was then male but living as a woman off-duty, had a �reputation as a homosexual� within the department, and was often photographed by the Cincinnati vice squad at night.

The city claimed it demoted Barnes for �lack of command presence,� and because she had difficulty with paperwork.

The city also claimed Barnes had �grooming deficiencies,� which the jury found to result from her French manicure and arched eyebrows.

At trial, assistant police chief Ron Twitty testified that Barnes did not act masculine enough.

The jury awarded Barnes $320,511, which included $150,000 compensatory damages, $32,511 back pay and the option to take $140,000 front pay instead of returning to the sergeant rank.

Judge Susan J. Dlott later allowed Barnes� attorneys Alphonse Gerhardstein and Jennifer Branch to multiply their fees, also charged to the city, by 1.75. This is allowed for difficult federal civil rights suits.

The anti-gay Citizens for Community Values and its spinoff Equal Rights No Special Rights attempted to intervene in the case, alleging that Charter Article 12 supported the city�s position. The measure, repealed by voters last fall, was in effect at the time. Judge Dlott denied their request.

In its appeal, the city raised 13 objections and points of error, including the jury instructions, the attorney fees, and their belief that Barnes had no claim under the 1964 act because transsexuals were not covered.

The court dismissed all 13 as �meritless.�

The decision was written by District Judge David W. McKeague of Michigan, who was on the case by designation. He was joined by Circuit Court Judges Ronald L. Gilman and Jeffrey S. Sutton.

Gilman was one of the three judges that decided the earlier Smith case. He and McKeague were appointed by Bill Clinton; Sutton was appointed by George W. Bush.

Immediately after the Smith decision, the city of Cincinnati began assisting the city of Salem in its appeal, in an attempt to help its own position in this case.

Salem�s request to have Smith heard en banc, or by the full 21-member court, was denied.

Cincinnati assistant city solicitor Richard Ganulin, who argued the case, could not be reached for comment.

Branch said Ganulin told her he will ask for this decision to be reviewed en banc. He has 14 days to file the petition for this. He also has the option to appeal to the U.S. Supreme Court.

Branch said with this decision, the Sixth Circuit is clearly in support of extending the 1964 law to transsexuals, as well as gays and lesbians who are victims of sex-stereotyping.

�There was no need to analyze,� said Branch, �The court just said there was a course of action under Price Waterhouse and Smith, and left it at that.�

�That shows that we have moved a long way in the Sixth Circuit at least on these issues,� she added.

Branch added that if the court denies the city�s petition for an en banc review, the city could go to the U.S. Supreme Court, which could take another year to resolve.

The Sixth Circuit accepts only 2% of the en banc petitions it receives.

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