Case 3:17-cv-00739-TJC-JBT Document 192 Filed 07/26/18 Page 64 of 70 PageID 10742
curiam) (citing Glenn for proposition that in an equal protection claim, “discrimination based on gender nonconformity [is] sex discrimination”), reh’g en banc denied, ___ F.3d ___, 2018 WL 3455013 (11th Cir. July 18, 2018); Evans v. Georgia Reg. Hosp., 850 F.3d 1248, 1254 (11th Cir. 2017) (same);[1] Chavez v. Credit Nation Auto Sales, LLC, 641 F. App’x 883 (11th Cir. 2016) (unpub.) (per curiam) (reversing entry of summary judgment in Title VII case where transgender employee created a triable issue of fact as to whether gender bias was a motivating factor in employer’s decision to fire her); Valentine Ge v. Dun & Bradstreet, Inc., No. 6:15-cv-1029-Orl-41GJK, 2017 WL 347582 (M.D. Fla. Jan. 24, 2017) (citing Chavez, 641 F. App’x at 884, for proposition that “[s]ex discrimination includes discrimination against a transgender person for gender nonconformity,” but finding employee failed to show employer terminated her because she transitioned to be a woman); see also Jackson, 544 U.S.
- ↑ While acknowledging Glenn’s authority regarding claims of gender non-conformity, both Evans and Bostock held that Title VII does not recognize a claim for sexual orientation discrimination, which the Eleventh Circuit distinguishes from gender nonconformity. See Evans, 850 F.3d at 1255–57; Bostock, 723 F. App’x at 964. As explained by Judge William Pryor, “[d]eviation from a particular gender stereotype may correlate disproportionately with a particular sexual orientation, and plaintiffs who allege discrimination on the basis of gender nonconformity will often also have experienced discrimination because of sexual orientation[;] … [b]ut under Title VII, we ask only whether the individual experienced discrimination for deviating from a gender stereotype.” Evans, 850 F.3d at 1259 (Pryor, William, J., concurring) (citations omitted). But see Bostock, 2018 WL 3455013, *4 (Rosenbaum, J., dissenting from denial of reh’g en banc) (arguing that the Eleventh Circuit should take the issue en banc to explain why, in the majority’s view, “gender nonconformity claims are cognizable except for when a person fails to conform to the ‘ultimate’ gender stereotype by being attracted to the ‘wrong’ gender”) (citation omitted).
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