December 24, 2004

Firefighter settles suit
that added TGs to 1964 rights law

by Eric Resnick

Salem, Ohio--A federal lawsuit that extended the Civil Rights Act of 1964 to protect transgender people from sex stereotyping discrimination on the job ended when firefighter Jimmie Lee Smith and the city of Salem settled out of court.

The confidential agreement reached December 10 disposed of the remaining litigation and allows Smith to continue her job as a lieutenant in the fire department. She will continue her transition, and now presents on the job as a woman.

The case became nationally significant in August when the Sixth Circuit Court of Appeals in Cincinnati ruled that Smith had standing to bring the suit because Title VII of the 1964 act covers transgender people, and lesbians and gays.

The unanimous decision considered the logic in the 1989 U.S. Supreme Court decision Price Waterhouse v. Hopkins that sex stereotyping is a form of discrimination, and for the first time, applied it to a transsexual.

The decision was upheld by the entire circuit when the city?s petition to have the case reviewed by the entire court was denied October 18.

The ruling rendered pre-Price cases in the Sixth Circuit?s four states, and likely the rest of the nation, irrelevant. These include some that allowed discrimination against LGBT people because the rulings base protection on ?gender? rather than ?sex.?

The Sixth Circuit covers Ohio, Kentucky, Michigan and Tennessee. The suit also settled some law as to what constitutes an adverse employment action.

Smith, through her attorney Randi Barnabee, initially filed the suit against the city and seven of its officials including the mayor and law director in 2002 in U.S. District Court following what Smith claimed was the city?s attempt to force her out of her job when her appearance became more feminine.

Judge Peter Economus dismissed the case, agreeing with the city that transsexualism is not covered by the Civil Rights Act. Barnabee appealed, and successfully argued that Economus confused ?transsexual? with ?gender identity disorder,? leading him to rely on the older, discriminatory law.

Barnabee, who is also a transgender activist, said Smith?s appeal had to go forward because the city wanted to make Smith pay their legal bills for defending their discrimination.

The city of Cincinnati unsuccessfully attempted to become a friend of the court on Salem?s behalf to improve their position in a suit against them filed by a transsexual police officer. In that case, which is currently on appeal to the Sixth Circuit, a jury awarded officer Philecia Barnes $322,000 to redress the city?s attempt to demote her when she transitioned.

Barnabee has three other similar cases on appeal that also benefit from the decision.

?I?m glad we brought the matter to a close,? said Barnabee. ?[Smith] is still a lieutenant, and it was a bonus that we were able to make new case law in the United States.?

Barnabee said she is proud of Smith for having persevered what she described as an ?arduous battle.?

But according to Smith, transitioning on the job has not been so arduous. Smith is currently the only female firefighter in Salem, 15 miles southwest of Youngstown.

?It?s going okay,? said Smith, ?Most of the guys are getting used to it, and all the guys on my shift are doing well with it.?

As lieutenant, Smith is second in command of the shift.

Smith said he expects the city will soon finish installing a privacy curtain around her bunk and making the restroom and shower lockable while she is using it.

Smith said she always intended to go to the department?s Christmas party, but that some of her colleagues have approached her insisting that she go.

?I think they thought I wasn?t going or worried that I thought my going would make them uncomfortable,? said Smith. ?They wanted to make sure I knew they wanted me there.?

Smith and her married spouse Ellen have recently begun to realize how significant the case is, in addition to adjusting to Jimmie Lee?s transition.

?I would do it all over,? said Smith, ?That I would.?