November 11, 2005

Top court allows ruling for Cincinnati TG cop to stand

by Eric Resnick

Washington, D.C.--The nation?s highest court decided not to hear the city of Cincinnati?s challenge to a $322,000 award to a transsexual police officer, allowing an earlier decision to stand.

The November 7 denial of the city?s petition to hear the case means the city must comply with a unanimous decision by the Sixth Circuit Court of Appeals last March in favor of officer Philecia Barnes.

Barnes sued the city in 2000, after a demotion from the recently-earned rank of sergeant. At the trial, the city said that Barnes, a former Marine sergeant who served in Desert Storm, had a ?lack of command presence.?

The jury found that what the city really meant was that it had trouble accepting Barnes? manicured nails, arched eyebrows and ?reputation as a homosexual.?

Barnes was, at that time, living as a man on the job and as a woman the rest of the time. She has since transitioned.

But it also came out at trial that the city?s vice squad was observing and photographing Barnes at bars at night and bringing that information back to the command.

Barnes? suit alleged that the city discriminated against her by sex-stereotyping--not acting masculine enough--in violation of Title VII of the Civil Rights Act of 1964.

The act does not specifically protect transsexuals, or gays and lesbians, but the 1989 U.S. Supreme Court decision Price Waterhouse v. Hopkins made such suits possible because sex-stereotyping is a form of sex discrimination, which the law explicitly covers.

Another suit brought under the Price Waterhouse case, Smith v. City of Salem, was settled by the Sixth Circuit shortly before Barnes? suit arrived there.

Smith?s case, which was the first appellate ruling extending Title VII protection to a transsexual under sex-stereotyping, was the basis for the Sixth Circuit?s unanimous ruling in Barnes? case.

In Smith, the city of Salem, near Youngstown, settled with firefighter Jimmielee Smith after the ruling.

In Barnes, however, the city of Cincinnati appealed to the U.S. Supreme Court.

In their September 1 petition, Assistant City Solicitor Richard Ganulin argued that ?sex-stereotyping? is a vague term, and that Cincinnati agrees with the dissent by Chief Justice Rehnquist and Justices Scalia and Kennedy in Price Waterhouse that no Title VII action can be brought based on sex-stereotyping.

Ganulin also argued that Congress has repeatedly considered and rejected attempts to amend Title VII to include sexual orientation and gender identity, making the Sixth Circuit?s Smith decision too far a stretch of the law?s intent.

Ganulin quoted a respected federal judge, Richard Posner of the Seventh Circuit Court of Appeals in Chicago, who in the case of Hamm v. Weyauwega Milk Products in 2003 said that ?the gender stereotyping theory was being overused and misused by the courts to distort the meaning of Title VII.?

Ganulin said he always thought Barnes would be headed to the Supreme Court, and pointed out that just because the high court turned it away doesn?t mean that it agrees with the Sixth Circuit in Smith or this case.

Four justices must to want to hear a case for it to be accepted for review by the Supreme Court.

Barnes? attorney, Alphonse Gerhardstein of Cincinnati, said the city fought hard for the right to discriminate against his client, and that he was pleased that the Supreme Court didn?t take the case.

?We applied traditional Title VII law,? said Gerhardstein, ?that was longstanding with Price Waterhouse, to the situation with Philecia Barnes.?

Bedford attorney Randi Barnabee, who won the Smith decision, said, ?The Supreme Court?s refusal to hear the case should be taken to mean that they do not find guaranteeing transsexuals Title VII protection to be an affront to the law. They chose not to disturb the holdings of the Sixth Circuit.?

Knowing that their case with Barnes was coming up for appeal and that the judgment against them was large, Cincinnati assisted Salem with the Smith case for its review by the full Sixth Circuit.

Barnabee hopes that the Supreme Court sees the Smith and Barnes cases as natural progressions of Price Waterhouse, and that denying review was the court clarifying that.

However, Judge Sam Alito, President Bush?s nominee to replace the retiring Justice Sandra Day O?Connor, has written opinions on Title VII suggesting that he sides with Judge Posner that gender stereotyping is being overused. If he is confirmed, his vote could cause the high court to possibly reverse Smith and Barnes.

The initial jury award included $150,000 compensatory damages, $32,511 back pay and the option to take $140,000 back pay in lieu of returning to the rank of sergeant.

Judge Susan Dlott later allowed the attorney fees to be multiplied by 1.75 because it was a difficult case to bring.

Gerhardstein said that with interest since the initial award, the city now owes close to $1 million to Barnes and to him for his fees. He expects the matter to be concluded by the end of the year.

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