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Court rules in transgender discrimination case

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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.

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