Case 3:17-cv-00739-TJC-JBT Document 192 Filed 07/26/18 Page 50 of 70 PageID 10728
university subject to North Carolina’s “bathroom bill.” But Johnston and Carcano are distinguishable. Their construction of the meanings of and relationship between the terms “sex” and “gender” are out of step with the Equal Protection analysis in Glenn (an Eleventh Circuit decision), the weight of other decisions which have construed those terms in this context, and with the medical community whose opinions were admitted in this case.[1] According to Glenn, “[a] person is defined as transgender precisely because of the perception that his or her behavior transgresses gender stereotypes. The very acts that define transgender people as transgender are those that contradict stereotypes of gender-appropriate appearance and behavior.” 663 F.3d at 1316 (quotation and citations omitted). Thus, “discrimination against a transgender individual because of her gender-nonconformity is sex discrimination, whether it’s described as being on the basis of sex or gender.” Id. at 1317.
- ↑ Johnston recognized that “the legal landscape is transforming as it relates to gender identity, sexual orientation, and similar issues” and that other courts had declined to adopt the definitions articulated in the thirty year old Seventh Circuit case upon which it relied, but determined that without Supreme Court or Third Circuit precedent, it would follow that earlier decision. See Johnston, 97 F. Supp. at 668, 671, n.14 (citing Ulane v. E. Airlines, Inc., 742 F.2d 1081, 1085 (7th Cir. 1984)). Both the Seventh Circuit and the Eleventh Circuit have found Ulane’s analysis no longer tenable following the Supreme Court’s decision in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), which held that Title VII’s reference to “sex” encompasses both biological differences and gender discrimination. See Whitaker, 858 F.3d at 1047; Glenn, 663 F.3d at 1318, n.5. Moreover, the Third Circuit’s Boyertown decision is precedent that would likely affect the outcome if Johnston were decided today. See Boyertown, 893 F.3d at 183–84 (providing definitions of “sex,” “gender,” “social gender transition” and related terms based on testimony of expert in gender dysphoria and gender-identity issues).
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