An Indiana judge has given a convenience store operator a big break by throwing out the sex discrimination case of a transgender employee who alleged she was fired because she did not look masculine enough.

Amber Creed, who was transitioning from male to female, testified that the director of human resources at Family Express Corp. asked her, “Will it kill you to appear masculine for 8 hours each day?” before the company fired her in December 2005. The former Christopher Creed had been coming to work at a store in LaPorte, Ind., wearing nail polish, makeup and a feminine hairstyle.

Family Express “terminated Plaintiff for failing to meet its masculine stereotype –- that is, she failed to comport with Defendant’s stereotypical expectations of how a male should appear,” Creed said in a brief opposing summary judgment.

The U.S. Supreme Court ruled in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), that Title VII of the 1964 Civil Rights Act prohibits discrimination based on a failure to conform behavior to sex stereotypes.

But Chief U.S. District Judge Robert L. Miller ruled earlier this month that the alleged statements of HR director Cynthia Carlson and another Family Express manager, Michael Berrier, “can’t establish that Family Express wouldn’t have terminated Ms. Creed but for her gender.”

“While Ms. Carlson’s comments, in particular, were insensitive of Ms. Creed being in the process of coming to terms with her gender identity, these comments in and of themselves don’t establish that Family Express fired Ms. Creed because she wasn’t 'male' enough,” he said in granting summary judgment to the defense.

Family Express argued that it terminated Creed only for refusing to follow its dress code and grooming policy, which requires employees to “maintain a conservative, socially acceptable general appearance.”

The decision shows how the odds are still stacked against transgender plaintiffs in Title VII cases despite a few recent victories in federal courts around the country. A District of Columbia judge ruled in September that discrimination against a transgender job applicant because of her gender identity was “because of ... sex.” Schroer v. Billington.

In Indiana, the controlling law remains the archaic Ulane v. Eastern Airlines, 742 F.2d 1081 (1984), in which the 7th U.S. Circuit Court of Appeals held that discrimination based on transgender status is not actionable under Title VII. As a result, Creed could only proceed on a Price Waterhouse sex-stereotyping claim.

“[A] reasonable jury could conclude that Berrier and Carlson did not believe Plaintiff appeared sufficiently masculine –- what they now call 'conservative' -- and that in order for Plaintiff to keep her job she had to meet Berrier and Carlson’s expectations of masculinity,” she argued.

Miller indicated he was not altogether comfortable with his decision:

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 so far.

A version of the Employment Non-Discrimination Act that bars discrimination against employees based on sexual orientation passed the House of Representatives last year, but does not include gender identity within its scope.

“ENDA is far too limited and Title VII should be amended to clearly state that discrimination on the basis of sexual orientation, [gender] identity and expression all fall under the term of discrimination based on sex,” one online commenter on the Creed case said.

By Matthew Heller
1/25/09