High court
refuses to hear appeal of pro-transgender ruling

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, a transgender woman who was born Phillip Barnes. A federal appeals court upheld a jury's finding that Barnes had been a victim of discrimination that violated a federal civil rights law. The city was ordered to pay the officer $320,000 plus another $550,000 in attorney's fees. Barnes, a 24-year veteran of the Cincinnati police force, dressed as a man at work but as 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 sexual or racial discrimination. Sexual orientation is not covered in the law, but justices were asked to deal with a related issue: sex stereotyping of transsexual workers. The case would have been a follow-up to a 1989 Supreme Court decision that 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 of the number of transgender workers in the United States because of their fears of going public, said Lambda 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.

The sixth U.S. circuit court of appeals in Cincinnati said that Barnes had been subjected to an unusual daily evaluation by other sergeants and required to wear a microphone at all times. (AP)