by Pamela Williams
President-elect Donald Trump recently met with Judge William Pryor of the 11th U.S. Circuit Court of Appeals. Pryor is said to be the frontrunner for the vacant Supreme Court seat. As I was researching him, I began to realize he is considered to be a very controversial nominee. I think I know why. I want to present the following to you, and I think it is a quite interesting case study. After reading it myself, I had to give it great thought. I now respect and agree with the decision of Judge William Pryor in this complex case, and I consider him to be a worthy candidate for the Supreme Court. I want to remind you that Reverend Franklin Graham said this would be the most important decision that President-elect Trump would make.
The case, Glenn v. Brumby, involved a dispute between Elizabeth Glenn, an editor at the Georgia General Assembly’s Office of Legislative Counsel, and her boss, Sewell Brumby. Glenn is trans and began transitioning in 2006. When she began wearing women’s clothing, Brumby said her appearance was “inappropriate” because she was “a man dressed as a woman and made up as a woman.” Brumby insisted that Glenn’s transition was “unnatural,” and stated that “it’s unsettling to think of someone dressed in women’s clothing with male sexual organs inside that clothing.” Soon after, Brumby directed Glenn’s supervisor to fire her, because “Glenn’s intended gender transition … would be disruptive,” “people would view it as a moral issue,” and “it would make Glenn’s coworkers uncomfortable.”
Glenn sued Brumby, alleging that his adverse actions violated the Equal Protection Clause, which typically prohibits states from engaging in sex discrimination. She argued that Brumby had “discriminat[ed] against her because of her sex, including her female gender identity and her failure to conform to the sex stereotypes associated with the sex [that the defendant] perceived her to be.” A three-judge panel on the 11th Circuit—comprised of Pryor, Barkett, and Judge Phyllis Kravitch—unanimously agreed with Glenn. The Supreme Court, Barkett noted in her opinion, has found that sex stereotyping—mistreating an individual because she is not “feminine” enough, for instance—is a form of sex discrimination. Barkett then explained:
A person is defined as transgender precisely because of the perception that his or her behavior transgresses gender stereotypes. “[T]he very acts that define transgender people as transgender are those that contradict stereotypes of gender-appropriate appearance and behavior.” … There is thus a congruence between discriminating against transgender and transsexual individuals and discrimination on the basis of gender-based behavioral norms.
- Accordingly, discrimination against a transgender individual because of her gender-nonconformity is sex discrimination, whether it’s described as being on the basis of sex or gender. … An individual cannot be punished because of his or her perceived gender-nonconformity. Because these protections are afforded to everyone, they cannot be denied to a transgender individual. The nature of the discrimination is the same; it may differ in degree but not in kind, and discrimination on this basis is a form of sex-based discrimination that is subject to heightened scrutiny under the Equal Protection Clause.
Judge William H. Pryor Jr. of the U.S. Court of Appeals for the Eleventh Circuit speaks. While serving as attorney general of Alabama, Pryor sought then-Chief Justice Roy Moore’s removal from the Alabama Supreme Court for defying a federal court order to remove a Ten Commandments monument from the state judicial building. Pryor was appointed to the Eleventh Circuit in 2003 and confirmed in 2005 as part of the “gang of 14” compromise. Introduction by Ernest A. Young. Sponsored by the Duke Law Federalist Society.