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Court May Take Up Transsexual Case;

Cincinnati police officer sues department over alleged discrimination based on desire to switch gendersNathan Carlile

One side says the case is about sex discrimination. The other says it's simple stereotyping. Now the Supreme Court is being asked to step in.

In 1999, Philip Barnes was a Cincinnati police officer training for a promotion to sergeant. Barnes was also intent on changing gender and spent his off hours living as a woman. Barnes, who had worked in the department since 1981, ranked 18th out of the 105 officers who took the sergeant's exam. But the police department, citing a litany of professional errors and shortcomings, refused to promote Barnes.

Barnes, now known as Philecia Barnes, filed suit in 2003 in the U.S. District Court for the Southern District of Ohio, claiming sexual discrimination under Title VII of the Civil Rights Act. A jury ultimately agreed with Barnes, awarding $320,000 in damages. The verdict was later upheld by the U.S. Court of Appeals for the 6th Circuit. On appeal, the city argued, to no avail, that the sexual discrimination Barnes claims is instead sexual stereotyping, based on his act of switching sexes, which does not enjoy special protection under the law and would leave Barnes without a cause of action.

The Supreme Court will consider Barnes v. City of Cincinnati during its private conference on Nov. 4. It is among several cases the Court will review to determine if they should be added to the Court's docket for argument next year.

In its brief the city cites Price Waterhouse v. Hopkins, a landmark sex discrimination case decided in 1989 with a 6-3 vote. In a dissenting opinion in that case, Justices Anthony Kennedy, Antonin Scalia, and then-Chief Justice William Rehnquist wrote that "Title VII creates no independent cause of action for sex stereotyping." The dissent went further, emphasizing, "The plaintiff must show that the employer relied on her gender in making its decision."

The city sees this as an opening. It has asked the Court to view Barnes as a transsexual and in the same light as homosexuality, which does not have protection under Title VII. The brief also cites confusion between the circuits and says the 2nd and 7th circuits have recognized that Title VII does not protect transsexuals from discrimination.

In the respondent brief, Barnes says the circuits are in agreement because his claim was not based on his transsexuality but on how the department viewed his gender. Barnes claims the Court established clear precedent with Price Waterhouse, saying sex stereotyping is a form of discrimination and the law was properly applied in this case.

"Just as the woman in Price Waterhouse was denied a partnership because she was not sufficiently feminine for her employer, Philip Barnes, a male at the time of his probation, was denied his promotion because he was not sufficiently masculine enough for his supervisors," the brief states.

What is most important, says Richard Ganulin, Cincinnati's assistant city solicitor, is whether the Court desires to redefine the difference between sex discrimination and sexual stereotyping.

"The law tries to keep women and men from being treated differently," says Ganulin. "But different kinds of men and women is the gray area, and the Court needs to step in."


• Howard Delivery Service Inc. v. Zurich American Insurance Co., No. 05-128. Whether an insurer's claim against a debtor's estate for unpaid workers' compensation insurance premiums is entitled to priority under the Bankruptcy Code.

• Krause v. Titleserv Inc., No. 95-166. Licensees' rights to use of computer programs under the Copyright Act.

• Nese v. Julian Nordic Construction Co., No. 05-277. When a plaintiff presents significant evidence that his employer made up a pretextual justification to terminate his employment, and this act was motivated by the employer's fear that the plaintiff suffered from a seizure disorder, should the determination of whether the employer regarded the plaintiff as substantially limited in working be left for the jury to decide?

Gomez v. Tennessee, No. 05-296. The effect of last spring's decision in United States v. Booker on state sentencing systems that are nearly identical to the Washington State system that was invalidated in the earlier Blakely v. Washington decision.

This column seeks to identify cases on the Supreme Court's conference agenda that are leading candidates for Supreme Court review or that raise significant national issues. Thomas Goldstein of Washington, D.C.'s Goldstein & Howe selects these cases from the many petitions filed based on several factors, including whether lower courts have split on the issues presented. He does not otherwise participate in the preparation of this column.

Nathan Carlile can be contacted at [email protected].
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