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UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA VANDIVER ELIZABETH GLENN, f/k/a : GLENN MORRISON, : : Plaintiff : : v. : : SEWELL R. BRUMBY, GLENN : RICHARDSON, CASEY CAGLE, : ERIC JOHNSON and ROBYN J. : UNDERWOOD, all in their : official capacities, : : Defendants. : :

CIVIL ACTION NO. 1:08-CV-2360

DEFENDANTS MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS MOTION FOR SUMMARY JUDGMENT COME NOW SEWELL R. BRUMBY, GLENN RICHARDSON, CASEY CAGLE, ERIC JOHNSON and ROBYN J. UNDERWOOD, the Defendants in the above-matter, and file this Defendants Memorandum of Law in Support of their Motion for Summary Judgment, stating as follows:

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I.

STATEMENT OF FACTS

Vandiver Glenn (Glenn) was known as Glenn Morrison when she was hired as an editor in the Office of Legislative Counsel for the State of Georgia in October, 2005. (Exhibit "A", deposition of Vandiver Glenn, p. 5.) During the time that Glenn worked at the Office of Legislative Counsel she presented as a man. (Exhibit "B", deposition of Sewell Brumby, p. 26.) At the time Glenn began working at the Office of Legislative Counsel, she had already begun electrolysis to remove facial hair. (Exhibit "A", deposition of Vandiver Glenn, p. 60.) Glenn had also previously started taking estrogen, progesterone and spironolactone. (Exhibit "A", deposition of Vandiver Glenn, p. 53.) Estrogen causes breast development, loss of muscle mass, and softening of the skin. (Exhibit "A", deposition of Vandiver Glenn, p. 54.)1 Progesterone is another female hormone that aids in breast development. (Exhibit "A", deposition of Vandiver Glenn, p. 54.) Spironolactone blocks the effects of testosterone produced by Glenn's body. (Exhibit "A", deposition of Vandiver Glenn, p. 55.)2 In April 2006, while working in the Office of Legislative Counsel, Glenn underwent various feminization surgical procedures. These procedures included a
Glenn anticipates taking estrogen the rest of her life, unless she undergoes genital reassignment surgery and has her testes removed. (Exhibit "A", deposition of Vandiver Glenn, p. 54, 56.) 2 Glenn no longer takes progesterone because he has had a breast augmentation surgery. (Exhibit A, deposition of Vandiver Glenn, p. 55.) Glenn has also stopped taking spironolactone as his dosage of estrogen adequately suppresses his bodys production of testosterone Exhibit A, deposition of Vandiver Glenn, p. 55-56.)
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brow lift, liposuction, having her jaw line narrowed and her chin shortened. (Exhibit "A", deposition of Vandiver Glenn, p. 58.) Glenn has not, however, at any time undergone genital reassignment surgery. (Exhibit "A", deposition of Vandiver Glenn, p. 65.) Glenn still has a penis and testicles. (Exhibit "A", deposition of Vandiver Glenn, p. 65.) During the time that Glenn worked at the Office of Legislative Counsel, no one criticized his appearance at the office. (Exhibit "A", deposition of Vandiver Glenn, p. 46.) No one ever told Glenn that he did not look enough like a man. (Exhibit "A", deposition of Vandiver Glenn, p. 46-47.) No one ever told Glenn he did not act enough like a man. (Exhibit "A", deposition of Vandiver Glenn, p. 47.) No one at work ever told Glenn he looked too much like a woman. (Exhibit "A", deposition of Vandiver Glenn, p. 47.) No one at the Office of Legislative Counsel ever told Glenn that he acted too much like a woman. (Exhibit "A", deposition of Vandiver Glenn, p. 47.) Sewell Brumby is the Legislative Counsel for the Georgia General Assembly. (Exhibit "B", deposition of Sewell Brumby, p. 6.) As Legislative Counsel, Mr. Brumby is responsible for employment decisions for all persons employed in the Office of Legislative Counsel. (Exhibit "B", deposition of Sewell Brumby, p. 10.) During Glenn's employment, Mr. Brumby was informed by Beth Yinger that Glenn

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intended to transition from male to female. (Exhibit "B", deposition of Sewell Brumby, p. 35.) Brumby determined that he did not need to take action at that time because he did not see an immediate adverse impact on the operations of the Office of Legislative Counsel. (Exhibit "B", deposition of Sewell Brumby, p. 37.) At a later time, Beth Yinger informed Brumby that Glenn was almost done with the process of changing her legal name and was intending to become a woman in the near future. (Exhibit "B", deposition of Sewell Brumby, p. 38.) Based on the imminent nature of Glenns transition, Brumby believed there were potential adverse consequences whether Glenn remained as an employee or if he was terminated. (Exhibit "B", deposition of Sewell Brumby, p. 39-40.) He was concerned about getting sued, as well as the potential impact in the work place. (Exhibit "B", deposition of Sewell Brumby, p. 40.) Mr. Brumby was concerned about the confidence of 236 members of the Legislature should Glenn remain employed. (Exhibit "B", deposition of Sewell Brumby, p. 51-52.) He was also concerned about a lawsuit based upon restroom usage. (Exhibit "B", deposition of Sewell Brumby p. 42, 51 and Affidavit of Sewell Brumby, 2.) There are single occupancy bathrooms in the Office of Legislative Counsel. (Exhibit "B", deposition of Sewell Brumby, p. 50.) There are also public women's restrooms on the first, second and third floors of the Capitol Building, where the

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Office of Legislative Counsel is located.

(Exhibit "D", Affidavit of Robyn

Underwood, 3.) These public restrooms are multi-person restrooms, in that they have more than one stall and are intended for use by more than one woman at a time. (Exhibit "D", Affidavit of Robyn Underwood, 4.) Since October 16, 2007, Glenn has presented herself as a woman in all aspects of her life. (Exhibit "A", deposition of Vandiver Glenn, p. 51.) When presenting herself as a woman, Glenn uses women's restrooms. (Exhibit "A", deposition of Vandiver Glenn, p. 81.) On October 16, 2007, Glenn was terminated by Sewell Brumby. (Exhibit "A", deposition of Vandiver Glenn, p. 51.) During the conversation in which Glenn was terminated, he asked Mr. Brumby if he was concerned about how Glenn would look as a woman. Brumby stated that he was not concerned with how Glenn would look. (Exhibit "A", deposition of Vandiver Glenn, p. 79.) Brumby also stated that he was not concerned with how Glenn would behave. (Exhibit "A", deposition of Vandiver Glenn, p. 80.) Glenn even suggested to Brumby that the situation would be different if Glenn were 6'2". Brumby stated that it would not be different even if Glenn were 6'2" tall. (Exhibit "A", deposition of Vandiver Glenn, p. 80.) Mr. Brumby stated that he would explore any compromises that Glenn might suggest. (Exhibit "A",

deposition of Vandiver Glenn, p. 80.) Glenn did not propose any compromises or accommodations. (Exhibit "A", deposition of Vandiver Glenn, p. 81.) In fact, Mr.

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Brumby stated he would listen to anything Glenn had to say. (Exhibit "A", deposition of Vandiver Glenn, p. 80.) Glenn has not had any procedures to change her chromosomes. She is not aware of any procedures that would change a person's chromosomal makeup. (Exhibit "A", deposition of Vandiver Glenn, p. 64.) She has no reason to believe that she has female chromosomes. (Exhibit "A", deposition of Vandiver Glenn, p. 65.) Plaintiff's expert, Dr. Erin Swenson, has testified that females have XX chromosomes and males have XY chromosomes. (Exhibit "C", deposition of Swenson, p. 93.) Dr. Swenson is not aware of any surgery to change a person's chromosomes. (Exhibit "C", deposition of Swenson, p. 94.) Even genital reassignment surgery does not change a person's chromosomes. (Exhibit "C", deposition of Swenson, p. 94.) Therefore, Glenn still has the same chromosomes with which she was born. (Exhibit "C", deposition of Swenson, p. 94.) The Diagnostic and Statistical Manual of Mental Disorders (4th Ed.) is a publication of the American Psychiatric Association. In the section on gender identity disorder, under differential diagnosis, it states, "Gender Identity Disorder can be distinguished from simple nonconformity to stereotypical sexual behavior by the extent and pervasiveness of the cross-gender wishes, interests and activities. This disorder is not meant to describe a child's nonconformity to stereotypical sexual

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behavior as, for example, in "tomboyishness" in girls or "sissyish" behavior in boys. Rather, it represents a profound disturbance of the individual's sense of identity with regard to maleness or femaleness." (Exhibit "C", deposition of Erin Swenson, p. 69, 100; Exhibit "3" to the deposition of Erin Swenson, Diagnostic and Statistical Manual of Mental Disorders (4th Ed.), p. 580.) Defendants' expert witness in this case is Dr. Chester Schmidt, Jr. (Exhibit "E", deposition of Dr. Schmidt, p. 5 and Expert Report of Dr. Schmidt, Exhibit F to his deposition.) Dr. Schmidt is a psychiatrist and is an expert in the field of gender identity disorder. (Exhibit "E", deposition of Dr. Schmidt, p. 5.) Dr. Schmidt has testified that sex is a biologic concept. A person's sex is determined by their genes and chromosomes. (Exhibit "E", deposition of Dr. Schmidt, p. 18.) Gender or sexual identity is a social concept formed out of a person's life experiences. (Exhibit "E", deposition of Dr. Schmidt, p. 18.) Plaintiff's expert, Dr. Erin Swenson, agrees that a person's sex is different from their gender or sexual identity. (Exhibit "C", deposition of Erin Swenson, p. 107.) Gender identity is the social and psychological dimension of a person's general sexual nature. It is distinct from a person's anatomy. (Exhibit "C", deposition of Erin Swenson, p. 106-107.)

II.

EVALUATION AND ANALYSIS

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A.

Standard on Defendants Motion for Summary Judgment

A Motion for Summary Judgment should be granted when the non-moving party fails to make a showing "sufficient to establish the existence of every element essential to that party's case on which that party will bear the burden of proof at trial." Reuss v. Henry County, 2008 U.S. Dist. LEXIS 75505, *8 (N.D. GA. 2008). The initial burden is on the party filing the Motion. This burden is met by showing the Court there is an absence of evidence to support the non-moving party's case. Id. at *9. The non-moving party is then required to present competent evidence showing there is a genuine issue for trial. Id. The evidence and factual inferences are viewed in the light most favorable to the non-moving party. It is not enough, however, that there be some factual dispute between the parties. There must be a genuine issue of material fact in order to defeat the Motion. Id. B. Level of Review Under the Equal Protection Clause

The Equal Protection Clause does not prohibit classifications. Levin v. City of Palm Beach Gardens City Attorney's Office, 2008 U.S. App. LEXIS 25651, *6 (11th Cir. 2008). The real issue in an equal protection analysis is whether the classification passes muster when the appropriate level of scrutiny is applied. There are three (3) levels of scrutiny that can be applied, depending upon the classification. Strict scrutiny is applied to classifications based on race, national origin or those affecting

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fundamental rights. See Clark v. Jeter, 486 U.S. 456, 471 (1988). An intermediate level of scrutiny is applied to classifications based on sex or illegitimacy. Id. This intermediate level of scrutiny requires that the classification be substantially related to an important government purpose. See United States v. Virginia, 518 U.S. 533 (1996). Other classifications require only that the classification be rationally related to a legitimate governmental purpose. See Clark, supra. Therefore, as an initial matter, it must be determined which level of scrutiny is to be applied to Plaintiff's claims. C. Plaintiffs Claims Are Not Based on Sex And Are Only Entitled to a Rational Relationship Level of Scrutiny. This court has squarely stated that transsexuals as a group are not a suspect class based on sex. In Rush v. Johnson, 565 F. Supp. 856, 868 (N. D. Ga. 1983), the Plaintiff, a transsexual, alleged a violation of the Equal Protection Clause because the state would not pay for transsexual surgery. The court held that transsexuals are not a discreet and insular minority and, therefore, are not a suspect classification. Therefore, such a classification is only subject to the rational relationship test. Id. In order to avoid this clear ruling, and to elevate her status to the intermediate level of scrutiny, plaintiff alleges that she is a member of class based on sex, since her termination was a result of her non-conformity with sexual stereotypes. Plaintiffs argument has its genesis in Price Waterhouse v. Hopkins, 490 U. S. 228 (1989). In this
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case, Ann Hopkins, an accountant for Price Waterhouse, was denied a promotion to partner. Ms. Hopkins sued under Title VII, claiming Price Waterhouse discriminated against her based on sex. At trial, Hopkins produced evidence that some partners described her as macho and in need of a course at charm school. Her supervisor told her that her chances of promotion would be increased if she would walk, talk, dress and otherwise present herself more femininely. The Supreme Court found in favor of Hopkins. The Court stated that gender must be irrelevant to employment decisions. Id. at 239, 240. Although sex stereotypes do not inevitably prove that gender played a role in a particular employment decision, the comments about Ms. Hopkins were sufficient to show that Ms. Hopkins gender was a motivating role in the decision to deny her a promotion. Id. at 289. Since the decision in Price Waterhouse, several courts have considered claims brought by transgender individuals alleging discrimination on the basis of sex because they did not conform to sexual stereotypes. In Oiler v. Winn-Dixie Louisiana, Inc., 2002 LEXIS 17417 (E. Dist. La. 2002) Plaintiff was a Winn-Dixie truck driver. He was transgendered and had been diagnosed with Gender Identity Disorder, although he did not intend to have genital reassignment surgery. Id. at *4. He was discharged by Winn-Dixie because he publicly adopted a female persona and publicly cross-

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dressed as a woman, although he did not do so while at work. Id. at *9. Plaintiff did not make a claim for sexual harassment and there was no evidence in the record that plaintiff was called names or otherwise harassed because of his Gender Identity Disorder. Id. at *13. Plaintiff filed a Motion for Summary Judgment arguing that his termination for acts of cross-dressing and impersonating a woman while not at work was a form of forbidden sexual stereotyping. The court denied plaintiffs Motion for Summary Judgment and granted the defendants Motion for Summary Judgment. Id. at *37. The court found that plaintiffs behavior was not akin to the behavior of the plaintiff in Price Waterhouse. Id. at *29. This is just not a matter of an employee of one sex exhibiting characteristics associated with the opposite sex. This is a matter of a person of one sex assuming the role of a person of the opposite sex. Id. at *30. The court stated that the prohibition against employment discrimination on the basis of sex means biological sex. Id. at *30. [T]he phrase sex has not been interpreted to include sexual identity or Gender Identity Disorders. Id. at *30. In Etsitty v. Utah Transit Authority, 502 F. 3d 1215 (10th Cir. 2007), plaintiff was a bus driver for Utah Transit Authority (UTA). She was also a transsexual who had been diagnosed with adult Gender Identity Disorder. Id. at 1218. At the beginning of her employment, she presented herself as a man and used male restrooms. Soon after her employment began, however, she told her supervisor that

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she would appear more as a female at work and she would eventually change her sex. She also began using female restrooms while on her bus route. Id. at 1219. Although she began to present herself as a woman at work, she still had male genitalia and had not undergone genital reassignment surgery. Id. at 1219. Etsitty was eventually terminated because UTA was concerned about the possibility of liability arising from Etsittys restroom usage. Id. at 1219. Etsitty filed suit under Title VII claiming that she was discriminated against because she was a transsexual and transsexuals are a protected class under Title VII as transsexuals. She also claimed she was entitled to Title VII protection because she was discriminated against for failing to conform to sex stereotypes. Id. at 1221. The court found that transsexuals may not claim protection under Title VII based solely on their status as a transsexual. [S]uch protection extends to transsexual employees only if they are discriminated against because they are male or because they are female. Id. at 1222. The court also rejected plaintiffs Price Waterhouse theory of

discrimination that Plaintiff was a man who fails to conform to sex stereotypes. However far Price Waterhouse reaches, this court cannot conclude it requires employers to allow biological males to use womens restrooms. Use of a restroom designated for the opposite sex does not constitute a mere failure to conform to sex

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stereotypes. Id. at 1225. The Circuit Court upheld the District Courts grant of summary judgment to the defendants. Id. at 1228. In Kastl v. Maricopa County Community College District, 2006 U. S. Dist. LEXIS 602, 607 (D. Az. 2006). Plaintiff was hired by the defendant as a teacher. After being hired, plaintiff underwent various surgical procedures to develop a more feminine appearance. Id. at *4. After complaints from students that a man was using the womens restroom, plaintiff was told she could not use the womens restroom until she provided proof that she had completed sex reassignment surgery. Kastls contract with the defendant was subsequently not renewed. Id. at *5. Plaintiff filed suit claiming that requiring her to use mens restroom facilities, and her subsequent termination for failing to work under such conditions, amounted to a constructive discharge on the basis of sex. Id. at *5. Expert testimony established that the plaintiff would never make her own female hormones and that her chromosomal sex was male. Id. at *16. At the time of her termination, plaintiff still had a penis and testicles and her body did not naturally produce female hormones. Id. at *17. Despite plaintiffs claim that she was diagnosed a biological female, the court found that plaintiff provided no evidence that she was a biological female and a member of a protected class while employed by the defendant. Id. at *20. Therefore, defendants Motion for Summary Judgment regarding the Plaintiffs Title VII claim was granted. Id. at *20.

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The District Courts ruling was upheld on appeal. Kastl v. Maricopa County Community College District, 2009 U. S. App. LEXIS 7833 (9th Cir. 2009). The Circuit Court noted that the parties did not appear to have considered any type of accommodation for plaintiff restroom usage. Id. at ftnote. 1. Even after noting that it is unlawful to discriminate against a transgender, or any other person, because he or she does not act in accordance with a employers expectations for men or women, the court found that plaintiff had not put forward sufficient evidence to demonstrate that the defendant was motivated by plaintiffs gender. Id. at *3. In Creed v. Family Express Corporation, 2009 U. S. Dist. LEXIS 237 (N. D. Ind. 2009), the Plaintiff had been diagnosed with Gender Identity Disorder as defined by the Diagnostic and Statistical Manual of Mental Disorders, Text Revision (DSMIV-TR) Id. at *2. During her employment at defendants store, plaintiff gradually changed her appearance to look more feminine. Plaintiff was subsequently terminated when she refused to present herself at work in a more masculine manner. Id. at *8. Plaintiff filed a Title VII lawsuit claiming that she was treated in a discriminatory manner because of her sex. Id. at *11. The defendant filed a Motion for Summary Judgment arguing that plaintiff violated their grooming standards, which required that male and female employees adhere to grooming standards matching their gender, and that such standards do not

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discriminate on the basis of sex. Id. at *17. To sustain a claim based on sex stereotyping, then, a plaintiff must show that the employer actually relied on his or her gender in making an adverse employment decision. Id. at *14-15. Actions based on sexual preference or transgender status do not amount to discrimination based on sex. Id. at *14. The court found that the record did not support plaintiffs argument that defendant acted on the basis of sexual stereotypes. Id. at *24. 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 Expresss dress code and grooming policy discriminates on the basis of transgender status, but rightly or wrongly, Title VIIs prohibition on sex discrimination doesnt extend so far. Id. at *28. The evidence failed to create a genuine issue as material fact that Family Express terminated Creed based on her gender. Id. at *28-29. There have been cases since Price Waterhouse that have found that transgender individuals have been discriminated against on the basis of sexual stereotypes. In these cases, the respective plaintiffs produced evidence that the adverse employment decision was based on sexual stereotyping. See, Smith v. City of Salem, 378 F. 3d 566, 572 (6th Cir. 2004) (male plaintiffs co-workers commented on plaintiffs appearance and mannerisms as not being masculine enough and supervisors were aware of this unmasculine conduct and appearance; Lopez v. River Oaks, 542 F.

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Supp. 653, 660 S. D. Tx. 2008) (Lopez was discriminated against not because she was transgender, but because she did not comply with River Oaks notions of how a male should look); Schroer v. Billington, 2008 U. S. Dist. LEXIS 71358, *32 (D. C. 2008) (defendants hiring decision was based on sex stereotypes). In the present case, there is no evidence that the decision to terminate Plaintiff was based on sexual stereotyping. Despite the fact that Glenn underwent several feminization procedures and was taking female hormones, both prior to and during her employment at the Office of Legislative Counsel, people at work did not comment upon or criticize her appearance or behavior by stating that she was not masculine enough, or was too feminine. When Plaintiff was terminated, she was told it was not a matter of how she looked, or how she behaved. Since Plaintiff has failed to produce any evidence that the decision to terminate her was based on sexual stereotypes, Plaintiff has failed to present an essential element necessary to support her claim that she was discriminated against on the basis of sex because of sexual stereotyping. See, also, Oiler, supra at *13 (there was no evidence in the summary judgment record that name calling occurred or that Plaintiff was harassed because of his Gender Identity Disorder). Should Plaintiff rely on Schroer, supra, to argue that discrimination against her because she planned to transition from male to female, in and of itself is

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discrimination based on sex, such reliance is misplaced. Schroers theory was that gender identity is a component of sex. Therefore, Plaintiff argued discrimination on the basis of gender identity is discrimination based on sex. Schroer at *35. Schroer relied on the testimony of a Dr. Bockting in support of this proposition. Id. Not only is Dr. Bockting not a witness in this case, but all expert testimony in the present case is to the contrary. Dr. Chester Schmidt, Jr. testified that sex is a biological term and is not the same as sexual or gender identity. He testified that a persons sex is determined by their chromosomal makeup. A persons sexual or gender identity is a social concept formed out of life experiences. There is no specific etiology for a persons gender or sexual identity. Plaintiffs expert, Dr. Erin Swenson agreed that a persons sex is different than their sexual identity or gender identity. A persons sexual identity is based on their societal experiences. To the extent that the Schroer decision is viewed to hold that discrimination based on a persons decision to transition from male to female is discrimination based on sex, such a ruling should not be applied in this case for several reasons. First, this court has held as a matter of law that transsexuals as a group are not a suspect class based on sex. See, Rush v. Johnson, 55 F. Supp. 856 (N. D. Ga. 1983). Second, other courts have addressed this issue have refused to find that the classification of transgender or transsexual is a classification based on sex. See, e.g. Etsitty, supra at

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1221; Oiler, supra at *30; Ulane v. E. Airlines, Inc., 742 F. 2d 1081, 1084 (7th Cir. 1984); Sommers v. Budget Mktg., Inc., 667 F. 2d 748, 749-750 (8th Cir. 1982); Holloway v. Arthur Anderson & Co., 566 F.2d 659, 662-63 (9th Cir. 1977). Next, the Schroer court fails to cite any case support for a finding that an employment decision based upon a persons transition from male to female is based on sex. The court also fails to recognize the critical issue, which is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed. Etsitty, supra at 1225 (quoting Oncale vs. Sundown Offshore Serv., Inc., 523 U. S. 75, 80 (1998). There has been no showing that the termination of a transgender disadvantages one sex more than the other. See, also Harper v. Blockbuster Entertainment Corporation, 139 F.3d 1385, 1388 (11th Cir. 1998) (grooming standards that do not create an unequal burden on either sex are permissible). Since Plaintiff is not a member of a protected classification, she is only entitled to the rational relationship test. Plaintiffs claim of discrimination based on having Gender Identity Disorder, also draws only rational basis review. (See, Order denying Defendants Motion to Dismiss, dated June 25, 2009, p. 13.) D. Reasons. Defendants Actions Pass the Rational Relationship Test for Several

Under rational basis review, a Court must undertake a two (2) part inquiry:
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The first step in determining whether legislation survives rational-basis scrutiny is identifying a legitimate government purpose-a goal-which the enacting government body could have been pursuing. The actual motivations of the enacting governmental body are entirely irrelevant . The second step of rational-basis scrutiny asks whether a rational basis exists for the enacting governmental body to believe that the legislation would further the hypothesized purpose. The proper inquiry is concerned with the existence of a conceivably rational basis, not whether that basis was actually considered by the legislative body. Joel v. City of Orlando, 232 F. 3d 1353, 1358 (11th Cir. 2000) quoting Haves v. City of Miami, 52 F. 3d 918, 921-22 (11th Cir. 1995) (internal quotations and citations omitted)). This rational basis review should not inquire into the actual purpose of the challenged classification. LazyY Ranch v. Behrens, 2008 U. S. App. LEXIS 20035, *19 (9th Cir. 2008). A classification subject or rational basis review must be upheld if there is any reasonably conceivable state of facts that could provide a rational basis for the classification. Id. at *19-20. One legitimate government purpose is to avoid lawsuits against the government. In the present situation, if the Plaintiff continued employment with the Office of Legislative Counsel while presenting as a woman, although not having undergone genital reassignment surgery, Defendants undertook the risk of having the government sued for invasion of privacy or sexual harassment. Such lawsuits, even if the

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Defendants prevail, would cause the government to incur fees and expenses and otherwise expend energy in conjunction with defending these lawsuits. Although there were single use restrooms available for Plaintiff, she was not required or otherwise confined to using such restrooms. There were public, multi-use womens restrooms throughout the building. When presenting as a woman, as Plaintiff stated she would if she continued her employment with the Office of Legislative Counsel, she used womens restrooms. Plaintiff could not be restricted or confined to using only specific restrooms within the building. Such confinement in and of itself could be viewed as unlawful discrimination. Additionally, it is certainly not feasible to monitor Plaintiffs restroom usage within the Capitol from the moment she entered the doors of the building in the morning until she exited those doors at the end of the work day. Plaintiffs use of the public womens restrooms in the Capitol, when also used by other females within the Capitol, including school age children, would subject the government to lawsuits alleging invasion of privacy. Georgia law recognizes the tort of invasion of privacy based upon the intrusion into a persons seclusion or solitude, or into his private affairs. Sun v. Langston, 170 Ga. App. 60, 61 (1984). The intrusion aspect of this type of invasion of privacy involves a prying or intrusion, which would be offensive or objectionable to a reasonable person. Davis v. Emmis Publishing

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Corp. 244 Ga. App. 795, 797 (2000). An intrusion upon a persons use of a public toilet is a cognizable tort in Georgia. See, E. G. Elmore v. Atlantic Zayre, Inc., 178 Ga. App. 25 (1986). As previously cited, use of a womens restroom by transgenders was at the heart of Etsitty, supra and Kastl, supra. It is foreseeable that a female using a public womens restroom at the Capitol would pursue a lawsuit against the government based upon Plaintiff, an anatomical male, using that same restroom. The situation is perhaps even more concerning to the government, should a female child on one of the many tours of the Capitol experience using a womens restroom at the same time as an anatomical male. See, Etsitty, supra at 1224. (requirement that employees use restroom matching their biological sex is a legitimate, non-discriminatory reason for employees termination). Kastl, supra at *4-5. (citing complaints that a man was using the womens restroom, plaintiff, a transsexual, was banned from using the womens restroom until she could prove the completion of sex reassignment surgery). There is also a concern that the government could be sued by an employee on the basis of sexual harassment. See, Cruzan v. Special School District, 294 F. 3d 981 (8th Cir. 2002) (a female teacher filed a lawsuit against the school district alleging sexual harassment on the basis of a transgendered co-worker being allowed to use the womens faculty restroom). Another concern regarding future potential lawsuits is the

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possibility that another biological male employee at the Capitol would present as a woman and seek to use the womens restroom. Regardless of the reason this employee would present as a woman while being a biological male, she could claim discrimination if Plaintiff were allowed to use the womens restroom and she were not. In short, any male employee, whether transgender or not, could present as a woman and demand to use the womens restroom. If Plaintiff, as a biological male presenting as a woman were allowed to use the womens restroom, another similarly situated male could demand the same treatment. While it is not expected that there would be a rush of men presenting as women and demanding to use the womens restroom, this concern is certainly a conceivable state of facts that provides a rational basis for plaintiffs termination. In addition, Sewell Brumbys concern regarding the operation of the Office of Legislative Counsel and the Office having the confidence of the legislators of the State of Georgia, the Defendants have presented several conceivable sets of facts that serve as a rational basis for Plaintiffs termination. It is certainly not necessary for the Defendants to show that in any of the above mentioned scenarios, the Plaintiff would win their lawsuit against the government. It is impossible to predict all facts that would accompany a potential future lawsuit and thereby predict the outcome. Such lawsuits themselves, regardless of the eventual

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outcome, would be damaging to the government and it is, therefore, a reasonable goal to avoid such lawsuits. The avoidance of such lawsuits is certainly a conceivable rational basis for the termination of the Plaintiff. III. CONCLUSION

Plaintiff has failed to present evidence to show that her termination was based on gender because of sexual stereotyping. Therefore, Plaintiffs termination is viewed under the rational relationship test. The Defendants have demonstrated that there is a rational relationship between a legitimate goal of the Defendants, and the termination of the Plaintiff. Since Plaintiff has failed to show a genuine issue of material fact as to an essential element of her claim, Defendants Motion for Summary Judgment should be granted.

/s/ Richard N. Sheinis Richard N. Sheinis Georgia Bar No. 639865 Nichole Hair Georgia Bar No. 474182 Attorney for Defendants HALL BOOTH SMITH & SLOVER, P.C. Atlantic Center Plaza, Suite 900 1180 West Peachtree Street, NW Atlanta, GA 30309 (404) 954-5000

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Case 1:08-cv-02360-RWS Document 46-2

Filed 09/21/09 Page 24 of 25

Certification Under L.R.7.1D Pursuant to Northern District of Georgia Local Rule 7.1D, the undersigned counsel for Defendants certifies that the above and foregoing Defendants Memorandum of Law in Support of Motion for Summary Judgment is a computer document prepared in Times New Roman (14 point) font in accordance with Local Rule 5.1B. So certified this 21st day of September, 2009.

/s/ Richard N. Sheinis Richard N. Sheinis Georgia Bar No. 639865 Nichole Hair Georgia Bar No. 474182 Attorney for Defendants

HALL BOOTH SMITH & SLOVER, P.C. Atlantic Center Plaza, Suite 900 1180 West Peachtree Street, NW Atlanta, GA 30309 (404) 954-5000

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Case 1:08-cv-02360-RWS Document 46-2

Filed 09/21/09 Page 25 of 25

CERTIFICATE OF SERVICE I HEREBY CERTIFY that I have this day served a copy of the within and foregoing Defendants Memorandum of Law in Support of Motion for Summary Judgment upon counsel for all parties by electronically filing the same with the Clerk of Court using the CM/ECF system which will automatically send an e-mail notification of such filing to the following attorneys of record: Gregory R. Nevins, Esquire Cole Thaler, Esquire LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC. 730 Peachtree Street, N. E. Suite 1070 Atlanta, GA 30308 This 21st day of September, 2009. /s/ Richard N. Sheinis Richard N. Sheinis Georgia Bar No. 639865 Nichole Hair Georgia Bar No. 474182 Attorney for Defendants HALL BOOTH SMITH & SLOVER, P.C. Atlantic Center Plaza, Suite 900 1180 West Peachtree Street, NW Atlanta, GA 30309 (404) 954-5000

1666707-1 3128-0001

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