Case 8:14-cv-02421-MSS-AEP Document 30 Filed 01/22/15 Page 1 of 7 PageID 213

UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF FLORIDA
Tampa Division
UNITED STATES EQUAL
EMPLOYMENT
OPPORTUNITY COMMISSION,
Plaintiff,
v.
LAKELAND EYE CLINIC, P.A.,
Defendant

CASE NO. 8:14-cv-2421-T35 AEP

REPLY IN SUPPORT OF BRANDI BRANSONS

MOTION TO INTERVENE AS OF
RIGHT AND JOIN CLAIMS AS PLAINTIFF
I. Joinder of claims should be permitted because Title VII reaches all claims of sex
stereotyping including claims articulated in terms of gender identity, gender
expression, and gender transition.
Defendants contention that Title VII does not reach sex discrimination articulated in
terms of gender identity,1 gender expression,2 or gender transition3 is fundamentally flawed
because it improperly ignores the binding authority of Glenn v. Brumby, 663 F.3d 1312 (11th

1
Gender identity means a persons internal sense of belonging to a particular gender. See,
e.g., Glenn v. Brumby, 724 F.Supp.2d 1284, 1289 (N.D. Ga. 2010), affd, 663 F.3d 1213 (11th
Cir. 2011) (cross-gender identification).
2
Gender expression means a person's gender-related appearance and behavior whether or not
stereotypically associated with the person's assigned sex at birth. See, e.g., CAL. GOVT CODE
12926(r)(2).
3
Gender transition refers to the process of (or historical fact of having gone through)
changing ones dress, grooming habits, mannerisms, and/or sex characteristics to conform
with their gender identity. See, e.g., Brumby, 724 F. Supp. 2d at 1291 (N.D. Ga. 2010) aff'd,
663 F.3d 1312 (11th Cir. 2011).

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Cir. 2011).4 In Brumby, the 11th Circuit explicitly held that sex discrimination reaches gender
identity, gender expression, and gender transition discrimination. Brumby, 663 F.3d 1312,
131820, 1321 (11th Cir. 2011) (holding that equal protection prohibits discrimination based
on gender identity, gender expression that did not conform with sex stereotypes, and
sheer fact of the [gender] transition); id. at 1317 ([D]iscrimination against a transgender
individual because of her gender-nonconformity is sex discrimination, whether its described
as being on the basis of sex or gender. . . . These instances of discrimination against plaintiffs
because they fail to act according to socially prescribed gender roles constitute discrimination
under Title VII . . . .). The Brumby Court explicitly held that the elements for sex
discrimination are essentially the same under Title VII and equal protection (id. at 132021),
and the Court expressly stated that if it had been presented with a Title VII claim it would
have held that Glenns claims would be covered by the statute (id. at 1321 (If this were a
Title VII case, the analysis would end here.)). The 11th Circuit routinely deems itself bound
by prior equal protection precedents in the Title VII context, and vice versa, particularly
where, as here, the elements of the action are the same under both. See, e.g., Crawford v.
Caroll, 529 F.3d 961, 96970 (11th Cir. 2008). The cases outside this Circuit cited by
Defendant stand in distinct opposition to Brumby. There is no reasoned basis to ignore
Brumbys analysis in the Title VII context.

4
Defendants representation (Doc. 26 at 7) that Ms. Branson asserts a cause of action based
on discrimination as a transgender person is incorrect. Ms. Branson alleges discrimination
because of her gender, gender identity or expression, and gender transition. Doc. 1 31
33, 40, 4547, 54, 5960, 66, 7475, 81, 83. These labels are best understood as
characteristics upon which the discrimination was based, rather than any status as
transgender.

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Defendant is also patently incorrect in stating that the courts addressing this issue
have unequivocally held that discrimination against a persons status as transgender is
unprotected. Doc. 26 at 8. See, e.g., Smith v. City of Salem, Ohio, 378 F.3d 566, 575 (6th Cir.
2004) (we find that the district court erred in relying on a series of pre-Price Waterhouse
cases from other federal appellate courts holding that transsexuals, as a class, are not entitled
to Title VII protection); Lopez v. River Oaks Imaging & Diagnostic Group, Inc., 542
F.Supp.2d 653, 660 (S.D. Tex.). 2008) (rejecting distinction in Etsitty and Oiler between
trans employees and others); Schroer v. Billington, 577 F.Supp.2d 293, 308 (D.D.C. 2008)
(refusal to hire Schroer after being advised that she planned to change her anatomical sex by
undergoing sex reassignment surgery was literally discrimination because of . . . sex);
Hart v. Lew, 973 F.Supp.2d 561, 582 (D. Md. 2013) (discrimination on account of gender
transition falls within actionable sex discrimination claim). For these reasons, Defendant
is incorrect in stating that Title VII does not protect an employee from discrimination
because of gender identity, gender expression or gender transition, all forms of sex
discrimination.
II. Neither the EEOC nor the Florida Human Rights Commission exceeded their
authority in deciding that transgender persons are protected from discrimination
because of sex articulated in terms of gender expression, gender identity, and gender
transition.
Defendants contention that the EEOC and FHRC created new protected classes is
incorrect. The EEOC expressly addressed this concern in its clearly reasoned decision in
Macy v. Holder, observing that changing ones sex is no different than changing ones
religion.

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In this respect, gender is no different from religion. Assume that an employee

considers herself Christian and identifies as such. But assume that an
employee finds out the employees parents are Muslim, believes that the
employee should therefore be Muslim, and terminates the employee on that
basis. No one would doubt that such an employer discriminated on the basis of
religion. There would be no need for the employee who experienced the
adverse employment action to demonstrate that the employer acted on the
basis of some religious stereotype although, clearly, discomfort with the
choice made by the employee with regard to religion would presumably be at
the root of the employers actions. But for purposes of establishing a prima
facie case that Title VII has been violated, the employee simply must
demonstrate the employer impermissibly used religion in making its
employment decision.
Id. at *8 (annexed to main motion as Ex. C) Thus, just as employees are protected against
religious discrimination regardless of the employers understanding of their religion,
employees must be protected against trans discrimination regardless of the employers
understanding of their gender. As the EEOC observed, no new protected class has been
created:
Applying Title VII in this manner does not create a new class of people
covered under Title VIIfor example, the class of people who have
converted from Islam to Christianity or from Christianity to Judaism. Rather,
it would simply be the result of applying the plain language of a statute
prohibiting discrimination on the basis of religion to practical situations in
which such characteristics are unlawfully taken into account. See [Glenn v.]
Brumby, 663 F.3d [1312] at 131819 [(2011)] (noting that all persons,
whether transgender or not are protected from discrimination and [a]n
individual cannot be punished because of his or her perceived gender nonconformity).
Id. at *8. Applying the language of Title VII to practical situations results in protection in
differing factual situations, but does not create new classes. Recognizing that trans persons
can experience discrimination because of their failure to conform to sex stereotypes and
should thus be afforded protection against discrimination because of . . . sex does not

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create a new protected class. Rather, it affords trans personsirrespective of their gender
identity, gender expression, or gender transition statusequal protection from sex bias.
The FCHR also did not go beyond its authority. In Fishbaugh, the FCHR specifically
referred to a perception that a person failed to conform to stereotyped expectations of how a
woman should look and behave, concluding that a transsexual, as a man or woman, may
maintain an action for discrimination based on sex. Fishbaugh v. Brevard County Sheriffs
Dept, FCHR Order No. 04-103, *3 (2004) (Ex. D to main motion). In Shepley, the FCHR
simply noted that [t]he ALJs conclusions that...courts have not extended Price Waterhouse
to encompass factual situations as presented in this case are in error. Shepley v. Lazy Days
RV Center, Inc., FCHR Order No. 06016, *4 (FCHR 2006) (Ex. E to main motion). Neither
of these statements suggest establishment of a new class of protected persons. To the extent
that the later precedents of Glenn v. Brumby and Macy v. Holder, supra, establish that Title
VII provides protection to transgender employees based on gender identity, gender
expression, and gender transition discrimination, the FCRA would follow those precedents.
See discussion in Plaintiff/Intervenors main motion at 16, 56.

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CONCLUSION
For the foregoing reasons, Plaintiff-Intervenor Brandi Branson respectfully asks this
Court to grant Plaintiffs Motion to Intervene as of Right and Join Claims.
Dated: January 22, 2015
s/ Jillian T. Weiss__________
Admitted Pro Hac Vice
Law Office of Jillian T. Weiss
P.O. Box 642
Tuxedo Park, NY 10987
Phone: 845-709-3237
Fax: 845-915-3283

s/ J. Kemp Brinson
Bar. No. 752541
The Brinson Firm
P.O. Box 582
Winter Haven, FL 33882
Phone: 863-288-0234
Fax: 863-508-7684

Attorneys for Plaintiff/Intervenor Brandi Branson

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CERTIFICATE OF SERVICE
I hereby certify that on January 22, 2015, I electronically filed the foregoing with
the Clerk of the Court by using the CM/ECF system, which will automatically serve all
counsel of record.
s/ Jillian T. Weiss__________
Admitted Pro Hac Vice
Law Office of Jillian T. Weiss
P.O. Box 642
Tuxedo Park, NY 10987
Phone: 845-709-3237
Fax: 845-915-3283
Attorney for Plaintiff/Intervenor