Or should I have titled this “Why Bush’s Supreme Court Nominations Matter?”

Barnes v. City of Cincinnati, in which a police officer sues over alleged discrimination based on the officer’s desire to switch sexes, may end up on the Supreme Court’s docket for argument next year.

In 1999, Philip Barnes was a Cincinnati police officer training for a promotion to sergeant. Barnes was also intent on changing gender and spent his off hours living as a woman. Barnes, who had worked in the department since 1981, ranked 18th out of the 105 officers who took the sergeant’s exam. But the police department, citing a litany of professional errors and shortcomings, refused to promote Barnes.

Barnes, now known as Philecia Barnes, filed suit in 2003 in the U.S. District Court for the Southern District of Ohio, claiming sexual discrimination under Title VII of the Civil Rights Act. A jury ultimately agreed with Barnes, awarding $320,000 in damages. The verdict was later upheld by the 6th U.S. Circuit Court of Appeals. On appeal, the city argued, to no avail, that the sexual discrimination Barnes claims is instead sexual stereotyping, based on his act of switching sexes, which does not enjoy special protection under the law and would leave Barnes without a cause of action.

Some more about Barnes v. City of Cincinnati from the website of Helms Mulliss & Wicker, PLLC:

In Barnes v. City of Cincinnati, the Sixth Circuit relied on City of Salem to uphold a jury verdict of $874,000 in favor of a transsexual male police officer who filed a Title VII suit alleging that he was terminated based on his failure to conform to sex stereotypes. The plaintiff in the case “was living off-duty as a woman, had a French manicure, had arched eyebrows, and came to work with makeup or lipstick on his face on some occasions.” The evidence further showed that the employee’s co-workers and supervisors said he lacked a “command presence” and that he needed to stop wearing makeup and act more masculine. Despite protests of the employer to the contrary, the court found that the plaintiff was a member of a protected class based on his allegation that he was discriminated against as a result of his failure to conform to gender stereotypes, such that the evidence was sufficient to support the jury’s verdict.

I often forget how many people know so little about trans issues, but the frequency in which I’ve been noticing trans women being referred to as trans men and vice verse lately reminds me. That and explaining to someone that Buck Angel is not a bio-male who had genital surgery.

But back to Barnes v. City of Cincinnati.

The City of Cincinnati’s brief:

In its brief the city cites Price Waterhouse v. Hopkins, a landmark sex discrimination case decided in 1989 with a 6-3 vote. In a dissenting opinion in that case, Justices Anthony Kennedy, Antonin Scalia, and then-Chief Justice William Rehnquist wrote that “Title VII creates no independent cause of action for sex stereotyping.” The dissent went further, emphasizing, “The plaintiff must show that the employer relied on her gender in making its decision.”

The city sees this as an opening. It has asked the Court to view Barnes as a transsexual and in the same light as homosexuality, which does not have protection under Title VII. The brief also cites confusion between the circuits and says the 2nd and 7th circuits have recognized that Title VII does not protect transsexuals from discrimination.

Barnes’ brief:

In the respondent brief, Barnes says the circuits are in agreement because his claim was not based on his transsexuality but on how the department viewed his gender. Barnes claims the Court established clear precedent with Price Waterhouse, saying sex stereotyping is a form of discrimination and the law was properly applied in this case.

“Just as the woman in Price Waterhouse was denied a partnership because she was not sufficiently feminine for her employer, Philip Barnes, a male at the time of his probation, was denied his promotion because he was not sufficiently masculine enough for his supervisors,” the brief states.

More at Life, Law, Gender.