03-001139 Connie Fishbaugh vs. Brevard County Sheriff`s Department Status: Closed Recommended Order on Friday, November 21, 2003.

Summary: Petitioner`s charge of employment discrimination based upon handicap and gender, should be dismissed because transexualism is not included in the class of persons protected by the Florida Civil Rights Act of 1992.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CONNIE FISHBAUGH, )

)

Petitioner, )

)

vs. ) Case No. 03 - 1139

)

BREVARD COUNTY SHERIFF'S )

DEPARTMENT, )

)

Respondent. )

)

RECOMMENDED ORDER

This c ause came before Daniel M. Kilbride, Administrative

Law Judge, Division of Administrative Hearings, in Tallahassee,

Florida. In lieu of a formal hearing, the parties agreed to

submit stipulated facts, expert deposition testimony, and

proposed recommended orders with supporting briefs.

APPEARANCES

For Petitioner: Karen M. Doering, Esquire

National Center for Lesbian Rights

3708 West Swann Avenue

Tampa, Florida 33609 - 4452

For Respondent: L inda G. Bond, Esquire

Allen, Norton & Blue, P.A.

1669 Mahan Center Boulevard

Tallahassee, Florida 32308

STATEMENT OF THE ISSUES

1. Whether transsexualism is a disability that is

protec ted by the Florida Civil Rights Act of 1992 (FCRA),

Chapter 760, Florida Statutes.

2. Whether an allegation of discrimination based on

transsexualism is sex discrimination, pursuant to the FCRA.

PRELIMINARY STATEMENT

Petitioner filed a Charge of Discrimin ation with the

Florida Commission on Human Relations (FCHR) on July 5, 2002,

charging Respondent with wrongful termination based on

disability discrimination because she was a transsexual. On or

about October 16, 2002, Petitioner amended her discriminatio n

charge to include discrimination based on sex, principally

founded on her status as a transsexual. Respondent replied that

FCHR lacked jurisdiction to investigate the claim because

transsexualism was not a disability pursuant to either the

Americans wit h Disabilities Act (ADA) or the FCRA and that

Respondent had a legitimate non - discriminatory business reason

for the termination. Respondent replied similarly to the

allegations of sex discrimination. On February 21, 2003, FCHR

issued a no jurisdiction d etermination on both the disability

and the sex discrimination allegations. Petitioner filed a

Petition for Relief on March 28, 2003. The matter was

transferred to the Division of Administrative Hearings on

March 28, 2003, for formal hearing de novo on the issue of

jurisdiction. A final hearing was scheduled for June 17, 2003.

Following a granting of Respondent's request for continuance,

the hearing was scheduled for July 30 and 31, 2003. On June 24,

2003, Petitioner filed an unopposed motion to set a briefing

schedule, oral argument, and to request a continuance of the

final hearing. After a telephonic hearing, the matter was

placed in abeyance on the need for a final hearing. A briefing

schedule was established on the issues of whether transsexual ism

is a disability covered by the FCRA and whether transsexuals are

a protected class covered against sex discrimination.

The parties filed stipulated facts, after which Petitioner

filed the affidavits of two experts who offered opinions on

transsexualism . Respondent also filed the deposition transcript

of Dr. Pamela Hill - Epps, one of Petitioner's experts, who is a

Florida - licensed psychologist and who specializes in the

treatment of persons with sexual disorders. Following motions

for extension of time to file their proposals and briefs,

Petitioner and Respondent filed their proposals on October 8 and

7, 2003, respectively. Each party's proposal has been given

careful consideration in the preparation of this Recommended

Order.

FINDINGS OF FACT

1. Res pondent is an employer as defined by the FCRA.

2. Petitioner, Connie Fishbaugh, is a transsexual woman

who has been diagnosed with Gender Identity Disorder (GID), also

known as transsexualism.

anssexualism is a recognized mental health disorder

that causes a desire to live and be accepted as a member of the

opposite sex. It is usually accompanied by the wish for one's

body to be congruent with the preferred sex. When left

untreated, persons diagnosed with transsexualism display

symptoms of severe a nxiety, severe depression, and dysfunction.

GID is recognized as a medical condition in the Diagnostic and

Statistical Manual of Mental Disabilities (4th ed.) and the

International Classification of Disease (World Health

Organization 10th ed.).

4. Gender identity, which is established at an early age,

is an individual's internal psychological identification as male

or female. A transsexual person is someone whose gender

identity is in conflict with the person's anatomical sex at

birth. This conflict cre ates emotional pain and suffering.

5. A person's gender identity cannot be changed through

psychotherapy or through any other known treatment. Based on

contemporary medical knowledge and practice, sex - reassignment is

the only effective, medically prescri bed treatment for this

condition. The medical process of sex reassignment takes place

over several years and requires life - long medical treatment and

monitoring. Sex reassignment relieves the distress caused by

GID for the great majority of transsexual p eople. Nonetheless,

sex reassignment is not a cure. A person who undergoes sex -

reassignment continues to carry a diagnosis and requires

lifelong medical monitoring and treatment.

6. Prior to undergoing sex - reassignment, Petitioner

experienced sever anxi ety, depression, and distress based on her

lifelong gender dysphoria. As the years progressed,

Petitioner's depression, anxiety, and distress about her gender

dysphoria became more acute. Although, during this period,

Petitioner fathered three children.

7. Petitioner took part in the Harry Benjamin Standards of

Care, the accepted medical protocol for the diagnosis and

treatment of transsexual persons. As part of this protocol,

Petitioner's treatment included: psychological evaluations,

during which tim e she was diagnosed with GID; completion of the

"real life experience," which required her to live full - time as

a female; administration of hormone therapy to create desired

secondary sex characteristics; and sex - reassignment surgery.

Petitioner completed sex - reassignment surgery in July 1995.

Sex - reassignment surgery is an accepted treatment for

transsexualism.

8. Petitioner completed psychiatric and psychological

treatment following surgery. She has been undergoing hormone

therapy as part of her treat ment regime since approximately

1992. Although Petitioner completed sex - reassignment surgery

and is now considered medically female, she must continue to

undergo hormone treatments and medical monitoring for the rest

of her life. Also as a result of the irreversible medical

treatment she received, Petitioner is unable to bear or produce

children.

9. Several years after completing sex - reassignment,

Petitioner applied for a position with the Brevard County

Sheriff's Office in the spring of 2001. Petitione r notified the

Sheriff's Office of her transgender status before she applied

for the position. Petitioner successfully completed

Respondent's required pre - employment medical and psychological

testing prior to her hire. She did not have any restrictions o r

request any accommodations on her ability to perform the

essential functions of her position. She was hired as a deputy

sheriff in May 2001 and was terminated on January 27, 2002.

10. On July 5, 2002, Petitioner filed a Charge of

Discrimination with th e FCHR alleging employment discrimination

under the applicable state and federal law. Following the

Determination: No Jurisdiction, Petitioner is pursuing her

disability claim only under state law and her sex discrimination

claim under both state and fede ral law.

11. In her Charge of Discrimination, Petitioner alleges

that she was harassed based on her transsexuality. When she

reported this harassment, Petitioner alleges that Respondent did

not take steps to respond to the harassment. Rather, the

Inspec tor stated that she "should have known that it would be

hard" and that "because of [her] situation, no one wanted to

hire [her]." It is alleged that no steps were ever taken by

Respondent to respond to the complaints of harassment.

Eventually, Petitioner was terminated based on allegations of

insubordination.

12. On February 21, 2003, FCHR issued a determination

letter stating that it lacked jurisdiction to consider

Petitioner's claims of discrimination on the basis of handicap

or on the basis of sex.

CO NCLUSIONS OF LAW

13. The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and the

parties thereto, pursuant to Sections 120.569, 120.57(1), and

760.11(7), Florida Statutes.

14. Petitioner contends that she w as unlawfully discharged

by Respondent because it discriminated against her due to her

handicap and also on the basis of her sex. Petitioner relies on

the FCRA. The FCRA prohibits certain specified unlawful

employment practices and provides remedies for such violations.

15. That statute provides, in pertinent part, as follows:

760.01 PURPOSES, CONSTRUCTION; TITLE

* * *

(2) The general purposes of the Florida

Civil Rights Act of 1992 are to secure for

all individuals within the State freedom

f rom discrimination because of race, color,

religion, sex, national origin, age,

handicap, or marital status and thereby to

protect their interest in personal dignity,

to make available to the state their full

productive capacities, to secure the state

agai nst domestic strife and unrest, to

preserve the public safety, health and

general welfare, and to promote the

interests, rights, and privileges of

individuals within the state.

(3) The Florida Civil Rights Act of 1992

shall be construed according to the fair

import of its terms and shall be liberally

construed to further the general purposes

stated in this section and the special

purposes of the particular provisions

involved.

* * *

760.10 Unlawful employment practices. -

(1) It is an unlawful employment practice

for an employer:

(a) To discharge or to fail or refuse to

hire any individual, or otherwise to

discriminate against any individual with

respect to compensation, terms, conditions,

or privileges of employment, because of such

individu al's race, color, religion, sex,

national origin, age, handicap, or marital

status.

* * *

(8) Notwithstanding any other provisions of

this section, it is not an unlawful

employment practice under ss. 760.01 - 760.10

for an employer, . . . to:

(a) Take or fail to take any action on the

basis of . . . handicap . . . in those

certain instances in which . . . absence of

a particular handicap . . . is a bona fide

occupational qualification reasonably

necessary for the performance of the

particular emp loyment to which such action

or inaction is related.

16. FCHR has adopted federal standards for allocating the

burden of proof in handicap discrimination claims, which are

different from a standard Title VII analysis. To establish a

prima facie case of handicap discrimination, Petitioner must

prove:

1. That [she] is a handicapped person

within the meaning of the Florida Civil

Rights Act;

2. That [she] is otherwise qualified for

the position in question; and

3. That [she] was discharged from her

posi tion solely by reason of her handicap.

Brand v. Florida Power Corporation , 633 So. 2d 504 at 507 and

510 (Fla. 1st DCA 1994). See also 29 U.S.C. Section 794

(Rehabilitation Act) and the ADA. Therefore, to determine

whether transsexualism is a covered ha ndicap pursuant to the

FCRA, the court must look to the ADA and the Rehabilitation Act

to determine whether transsexualism is included or excluded from

the definition of disability in those acts. See Razner v.

Wellington Regional Medical Center, Inc. , 837 So. 2d 437 at 440

(Fla. 4th DCA 2002).

17. The ADA is separated into three titles, each of which

prohibits disability discrimination in a different context:

Title I, 42 U.S.C. Section 12111 - 17, applies to discrimination

in employment; Title II, 42 U.S.C . Section 12131 - 65, applies to

discrimination in public services; and Title II, 42 U.S.C.

Section 12181 - 89, applies to discrimination in public

accommodations by private entities.

18. Title I of the ADA prohibits discrimination against

qualified individua ls with disabilities and defines disability

as: (1) a physical or mental impairment that substantially

limits one or more major life activities of such individual; (2)

a record of such an impairment; or (3) being regarded as having

a disability. 42 U.S.C . Section 12102(2)(A - C). Sutton v.

United Airlines , 527 U.S. 471, 478, 119 S. Ct. 2139, 2144

(1999). Florida law is in agreement. Fla. Amin. Code R. 60Y -

6.001(36); Brand v. Florida Power Corp. , supra at 510; Razner v.

Wellington Regional Medical Center, Inc. , supra at 441; and

Green v. Seminole Electric Cooperative, Inc. , 701 So. 2d 646,

648 (Fla. 5th DCA 1997). The Rehabilitation Act defines

disability similarly. 29 U.S.C. Section 701, et seq.

19. In addition to the language defining actual and

per ceived disabilities, the ADA and the Rehabilitation Act

include language that specifically excludes certain conditions

from the definition of a disabilityanssexualism is one such

condition. 42 U.S.C. Section 12211(b)(1) states:

(b) Certain condition s

Under this chapter, the term "disability"

shall not include --

(1) transvestism, transsexualism ,

pedophilia, exhibitionism, voyeurism, gender

identity disorders not resulting from

physical impairments, or other sexual

behavior disorders. (emphasis adde d)

20. Prior to the specific exclusion of transsexualism from

the Rehabilitation Act, some courts had recognized

transsexualism as a disability. See Doe v. United States Postal

Service , 1985 WL 9446 (D.D.C. 1985) (allowing a male to female

transsexual t o bring a handicap disability action against the

United States Postal Service for withdrawing an offer of

employment after learning of her intent to undergo the sex -

reassignment surgery).

21. Prior to the passage of the 1992 Florida Civil Rights

Act, FCHR considered whether Belinda Smith, a transsexual who

had not undergone sex - reassignment at the time of the adverse

employment action, was terminated because of her handicap.

Smith v. City of Jacksonville, Jacksonville Correctional

Institute , DOAH Case 88 - 5451, 1991 WL 833882 (1991), FCHR Case

No. 86 - 985 (1992). In 1985, when the facts arose in Smith , she

was a male employed as a corrections officer for the City of

Jacksonville. Because of transsexualism, Smith suffered from

depression, felt intense stres s and internal conflict, developed

bleeding ulcers, drank heavily, and contemplated suicide. The

employer terminated her after learning that she was transsexual

and was found wearing women's clothing in public. Smith filed a

charge of discrimination with FCHR following her termination

alleging disability discrimination. FCHR issued a no cause

determination that Smith challenged. Based on the specific

facts that Smith presented at the hearing, FCHR determined that

there was a substantial limitation on th e major life functions

of health and life and concluded that Smith was handicapped

based on the interpretation of the Florida Human Rights Act of

1977. At the time of the Smith termination in 1986, the ADA had

not become law, nor had transsexualism been e xcluded as a

disability from the Rehabilitation Act.

22. With the knowledge that transsexualism had previously

been recognized as a disability, Congress expressed a clear

intent to exclude transsexualism as a disability under federal

law. See 29 U.S.C. S ection 706(8)(F)(i). While acknowledging

that the American Psychiatric Association included

transsexualism as a diagnosis in the third and fourth editions

of the Diagnostic and Statistical Manual of Mental Disorders

(DSM - III & IV), Congress still decided to exclude transsexualism

from the ADA. In accepting the amendment that eventually

excluded transsexualism, Congress considered that this narrow

exclusion of mental conditions would not undermine the overall

purpose and intent of the ADA, but would curtai l litigation from

some of the more egregious employment lawsuits. 101 CONG.REC.

S11173 (daily ed. Sept. 14, 1989) (statement of Senator

Armstrong).

23. Despite the fact that transsexualism is a recognized

mental health diagnosis, the scope of the ADA doe s not encompass

every physical and mental discomfort or ailment. Toyota Motor

Mfg., Kentucky, Inc. v. Williams , 534 U.S. 184, 198 (2002). The

ADA only protects individuals that have an impairment that falls

within the meaning of the term "disability" as it is defined in

the ADA and interpreted by the courts. Toyota , 534 U.S. at 197.

24. Other states, whose civil and human rights acts are

based on the ADA and the Rehabilitation Act, also reject

transsexualism as a disability. Holt v. Northwest Training

Partnership Consortium, Inc. , 694 A.2d 1134 (Pa. Common Ct.

1997) (recognizing transsexualism as a medical condition but one

not covered by state and federal law as a disability). But see

Rentos v. Oce - Office Systems , 1996 WL 737215 (S.D.N.Y. 1996)

(findi ng transsexualism to be a disability under New York state

law because interpretation and analysis under state law is

independent of the federal law analysis). As such, any judicial

or administrative determination relying upon the ADA and/or the

Rehabilita tion Act dictates a finding that transsexualism must

be excluded from the definition of a disability.

25. Despite the finding in Smith , supra , by FCHR, which is

limited to its facts which occurred prior to the enactment of

the ADA and the amendments to th e Rehabilitation Act, there is

no basis for a finding that transsexualism is a disability

pursuant to the FCRA. Both the underlying federal law and the

regulations that construe the ADA and the Rehabilitation Act

specifically exclude the condition from th e definition of a

disability, and Florida follows those interpretations. Razner ,

supra at 440.

26. In matters of employment discrimination based on sex,

the FCRA is patterned after Title VII of the Civil Rights Act of

1964, 42 U.S.C. Section 2000e - 2. Br and , supra at 507. School

Board of Leon County v. Weaver , 556 So. 2d 443 (Fla. 1st DCA

1990). In Florida, there is a long - standing rule of statutory

construction which recognizes that if a state law is patterned

after a federal law on the same subject, t he Florida law will be

accorded the same construction as in the federal courts to the

extent the construction is harmonious with the spirit and policy

of the Florida legislation. Brand , supra at 509; O'Loughlin v.

Pinchback , 579 So. 2d 788 (Fla. 1st DCA 1 991).

27. In Department of Corrections v. Chandler , 582 So. 2d

1183 (Fla. 1st DCA 1991), the court analyzed the types of claims

under the FCRA. In that case, the court noted as follows:

Pertinent federal case law discloses two

means by which a discrimina tory employment

claim may be tried. The first, . . . , by

showing disparate treatment, and the second,

by showing discriminatory impact. When

employing the former, a claimant must

establish and employer's intentional

discrimination, however, as to the la tter,

intentional discrimination is not required,

and the claimant essentially challenges

practices which are fair in form but

discriminatory in operation . (Citations

omitted)

Id. at 1183 n.2

28. Petitioner in this case is seeking to establish a

dispara te treatment claim of sex discrimination. In order for

Petitioner to prevail in a disparate treatment case and obtain

the relief she seeks, Petitioner must establish that

Respondent's employment decision was based on a protected

status, i.e. , Petitioner's sex. In this case, Petitioner has

the burden of presenting evidence sufficient to establish that

her sex was a determining factor in the employment decision made

to discharge her. See U.S. Postal Service Board of Governors v.

Aikens , 460 U.S. 711, 715 ( 1983). Sex discrimination claims

pursuant to the FCRA, like claims under Title VII, must be

evaluated in light of the test formulated by the United States

Supreme Court in McDonnell Douglas Corp. v. Green , 411 U.S. 792,

93 S.Ct. 1817, 36 L.Ed.2d 668 (1973 ); and Texas Department of

Community Affairs v. Burdine , 450 U.S. 248 (1981). Harris v.

Shelby County Board of Education , 99 F.3d 1078, 1082 - 83 (11th

Cir. 1996). Under that test, the Plaintiff has the burden of

establishing a prima facie case of discrimi nation. In order to

satisfy that burden, the Plaintiff must prove that: (1) she was

a member of a protected group; (2) an adverse employment action

took place; (3) Plaintiff was similarly situated to non -

protected persons who received dissimilar treatmen t; and

(4) Plaintiff was qualified for the position. Holifield v.

Reno , 115 F.3d 1555, 1562 (11th Cir. 1997); Coutu v. Martin

County Board of County Commissioners , 47 F.3d 1068, 1073 (11th

Cir. 1995).

29. Petitioner has alleged that Respondent discrimin ated

against her because she is a transsexual and not because she is

a woman. Federal courts considering the issue of whether

transsexualism constitutes sex discrimination pursuant to Title

VII follow the reasoning in Ulane v. Eastern Airlines, Inc. , 742

F.2d 1081 (7th Cir. 1984) and reject transsexualism as being

protected by Title VII and, thus, the FCRA. Ulane explains

that:

The phrase in Title VII prohibiting

discrimination based on sex, in its plain

meaning, implies that it is unlawful to

discriminat e against women because they are

women and against men because they are men

. . . a prohibition against discrimination

based on sex is not synonymous with a

prohibition against discrimination based on

an individual's sexual identity disorder or

discontent with the sex into which they were

born.

Id. at 1085.

30. Petitioner argues that some states have adopted more

liberal definitions of "sex" to include sexual orientation and

that "sex" means more than anatomical sex. See , e.g. , Rentos v.

Oce - Office Sy stems , supra ; Maffei v. Kolaeton Industry, Inc. ,

626 N.Y.S.2d 391 (N.Y. 1995); and Enriquez v. West Jersey Health

Systems , 777 A.2d 365 (N.J. 2001). There is no statutory nor

case law to suggest that Florida is one of those states that has

recognized tran ssexualism as a class protected from

discrimination. Ulane , supra at 1085. See Holloway v. Arthur

Andersen & Co. , 566 F.2d 659, 664 (9th Cir. 1977); Powell v.

Read's Inc. , 436 F.Supp. 369 (D. Md. 1977); Voyles v. Ralph K.

Davies Medical Center , 403 F.Sup p. 456 (N.D. Cal. 1975); Smith

v. Liberty Mut. Ins. Co. , 569 F.2d 325, 327 (11th Cir. 1978).

31. Based on the foregoing, transsexualism is not a

disability within the meaning of the FCRA and an individual's

status as a transsexual is not covered as a pr otected class

within the meaning of sex discrimination pursuant to the FCRA.

32. Florida Administrative Code Rules 60Y - 5004(2) and 60Y -

5005(11) authorize the Executive Director, on behalf of FCHR, to

dismiss charges of discrimination based on the lack of

jurisdiction over the subject matter where there are no disputed

issues of fact. FCHR had the authority to delegate particular

actions to the Executive Director, including the authority to

dismiss a complaint of discrimination based on the lack of

subject matter jurisdiction if the investigation does not reveal

any disputed issues of material fact. See Florida Commission on

Human Relations v. Parrish Management , 682 So. 2d 159, 160 (Fla.

1st DCA 1996).

RECOMMENDATION

Based on the foregoing Findings of Fac t and Conclusions of

Law, it is

RECOMMENDED that the Florida Commission on Human Relations

enter a final order dismissing Petitioner's Charge of

Discrimination with prejudice because there is no basis to

conclude that transsexualism is included in the clas s of persons

protected by the FCRA, under either handicap or sex

discrimination.

DONE AND ENTERED this 21st day of November, 2003, in

Tallahassee, Leon County, Florida.

S

DANIEL M. KILBRIDE

Administrative Law Judge

Divi sion of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

thi s 21st day of November, 2003.

COPIES FURNISHED :

Linda G. Bond, Esquire

Allen, Norton & Blue, P.A.

1669 Mahan Center Boulevard

Tallahassee, Florida 32308

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Karen M. Doering, Esquire

National Center for Lesbian Rights

3708 West Swann Avenue

Tampa, Florida 33609 - 4452

Cecil Howard, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahass ee, Florida 32301

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.