ILNews

Court rules in transgender discrimination case

Back to TopCommentsE-mailPrintBookmark and Share

A District Court judge today granted summary judgment in favor of a convenience store company that was being sued by a transgender employee for sex discrimination after she was fired.

Amber Creed was hired by Family Express Corp. in February 2005 as male Christopher Creed and had a masculine demeanor and appearance. During her employment, Creed slowly transitioned into Amber and began wearing some makeup, clear nail polish, and longer hair. Creed maintained the same unisex uniform required for all employees.

Although she never performed poorly at work, complaints started coming in to her store manager, Dan Arthur, about her more feminine appearance. During a meeting with Arthur and the director of human resources, Cynthia Carlson, Creed was told she could no longer present herself in a feminine manner at work and that she needed to report to work as a male. Creed refused and she was fired. She claims her supervisors refused to allow her to follow the female appearance standard instead of the male standard.

Creed filed the suit, Amber Creed a/ka/ Christopher Creed v. Family Express Corp., No. 3:06-CV-465, in the South Bend Division of the Northern District, alleging Family Express fired her for not conforming to male stereotypes in violation of Title VII of the Civil Rights Act and Indiana Code. The company maintained it fired Creed because she refused to comply with its sex-specific dress code and grooming policy.

Chief Judge Robert L. Miller Jr. noted in the opinion that although the court refers to Creed as female, she must be considered male for purposes of Title VII.

Citing the dress code policy in Jespersen v. Harrah's Operating Co., Inc, 392 F.3d 1076 (9th Cr. 2004), Chief Judge Miller found the dress code and grooming policy in the instant case don't take male or female mannerisms into account or appear to have a disparate impact on either sex. The policy only applies to physical appearance, so Family Express' requirement that male and female employees follow grooming standards that match their gender doesn't discriminate on the basis of sex, the judge wrote.

Creed could succeed on her claim if she can prove a jury could infer intentional discrimination as the reason for her termination. Creed used the direct method of proof by presenting evidence that she was fired only because of her refusal to comply to male stereotypes. Creed relied heavily on Arthur's statements that wearing long hair or makeup aren't masculine characteristics, and from Carlson who questioned whether "it would kill" Creed to come to work as man for eight hours of the day.

But those statements don't show that because Creed is transgender, Family Express acted on the basis of a prohibited purpose as opposed to a legitimate, non-discriminatory purpose or even a legitimate discriminatory purpose. Those ambiguous remarks don't amount to proof under the direct method sufficient enough to create a genuine issue of material fact, Chief Judge Miller wrote.

"Ms. Creed might argue that real-life experience as a member of the female gender is an inherent part of her non-conforming gender behavior, such that Family Express's dress code and grooming policy discriminates on the basis of her transgender status, but rightly or wrongly, Title VII's prohibition on sex discrimination doesn't extend that far," the judge wrote. Creed's claim must rest entirely on the theory of protection as a man who doesn't conform to sex stereotypes.

"While the court may disagree with Family Express that a male-to-female transsexual's intent to present herself according to her gender identity should be considered a violation of its dress code and grooming policy, that is not the issue the law places before the court," he wrote.

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. @ President Snow, like they really read these comments or have the GUTS to show what is the right thing to do. They are just worrying about planning the next retirement party, the others JUST DO NOT CARE about what is right. Its the Good Ol'Boys - they do not care about the rights of the mother or child, they just care about their next vote, which, from what I gather, the mother left the state of Indiana because of the domestic violence that was going on through out the marriage, the father had three restraining orders on him from three different women, but yet, the COA judges sent a strong message, go ahead men put your women in place, do what you have to do, you have our backs... I just wish the REAL truth could be told about this situation... Please pray for this child and mother that God will some how make things right and send a miracle from above.

  2. I hear you.... Us Christians are the minority. The LGBTs groups have more rights than the Christians..... How come when we express our faith openly in public we are prosecuted? This justice system do not want to seem "bias" but yet forgets who have voted them into office.

  3. Perhaps the lady chief justice, or lady appellate court chief judge, or one of the many female federal court judges in Ind could lead this discussion of gender disparity? THINK WITH ME .... any real examples of race or gender bias reported on this ezine? But think about ADA cases ... hmmmm ... could it be that the ISC actually needs to tighten its ADA function instead? Let's ask me or Attorney Straw. And how about religion? Remember it, it used to be right up there with race, and actually more protected than gender. Used to be. Patrick J Buchanan observes: " After World War II, our judicial dictatorship began a purge of public manifestations of the “Christian nation” Harry Truman said we were. In 2009, Barack Obama retorted, “We do not consider ourselves to be a Christian nation.” Secularism had been enthroned as our established religion, with only the most feeble of protests." http://www.wnd.com/2017/02/is-secession-a-solution-to-cultural-war/#q3yVdhxDVMMxiCmy.99 I could link to any of my supreme court filings here, but have done that more than enough. My case is an exclamation mark on what PJB writes. BUT not in ISC, where the progressives obsess on race and gender .... despite a lack of predicate acts in the past decade. Interested in reading more on this subject? Search for "Florida" on this ezine.

  4. Great questions to six jurists. The legislature should open a probe to investigate possible government corruption. Cj rush has shown courage as has justice Steven David. Who stands with them?

  5. The is an unsigned editorial masquerading as a news story. Almost everyone quoted was biased in favor of letting all illegal immigrants remain in the U.S. (Ignoring that Obama deported 3.5 million in 8 years). For some reason Obama enforcing part of the immigration laws was O.K. but Trump enforcing additional parts is terrible. I have listed to press conferences and explanations of the Homeland Security memos and I gather from them that less than 1 million will be targeted for deportation, the "dreamers" will be left alone and illegals arriving in the last two years -- especially those arriving very recently -- will be subject to deportation but after the criminals. This will not substantially affect the GDP negatively, especially as it will take place over a number of years. I personally think this is a rational approach to the illegal immigration problem. It may cause Congress to finally pass new immigration laws rationalizing the whole immigration situation.

ADVERTISEMENT