Monday, April 22, 2013

Black Trans History-Philecia Barnes

[photo]Black transpeople aren't strangers in having to fight tooth and nail for our human rights.   We know from our history as African descendants in America we've had to rely on the courts at times to secure those human rights.   Some cases we've trans African-Americans have engaged in we've won, some we've lost.  But they have done their part to keep the momentum of trans human rights moving forward.

Here's another one of those cases from our history book, and this one takes place in Cincinnati, OH.   Philecia Barnes was a Cincinnati police officer for over two decades before beginning her gender transition and taking the sergeant's exam and passing it on July 13, 1998.    She placed 18th out of 105 candidates who took that examination.

You would think that having placed inside the Top 20 of people who took the exam she'd have a great chance at the promotion combined with her two decades of experience as a patrol officer.   But it was well known in the CPD that Barnes was transitioning and had notified CPD of her intention to do so well before taking that exam.   She was then subjected to a stressful three-month probationary period as a sergeant, during which time she was monitored on a daily basis, forced to wear a mike, and rated on a six-page form designed specifically for her. At the end, she failed because of what was termed a lack of 'command presence' and was demoted in June 1999 on the orders of then Cincinnati Police Chief Thomas Streicher.   

But Barnes also had warning signs that something shady was going on.   Col. Twitty told Barnes she did not appear to be “masculine,” and that she needed to stop wearing makeup and act more masculine prior to Barnes's promotion.  Col. Twitty stated the objective of such statements was to correct Barnes's “grooming deficiencies.”  Col. Twitty also claimed that the decision to fail Barnes from probation had nothing to do with Barnes's transsexual characteristics.  

However, Sergeant Ford warned Barnes that he heard rumors that Barnes was going to fail probation because Barnes had not been acting masculine enough.   It was also interesting to note that Barnes was the only officer to fail probation during the seven years from 1993 to 2000, according to court papers or be placed in a training program similar to what Barnes endured.   

So what happens when you feel you've been treated unjustly?   You sue, which Barnes did in October 2000.
At the heart of the Barnes case was the question of whether this country's main federal law against workplace discrimination, Title VII of the Civil Rights Act of 1964, protects transgender workers (and tangentially, gay workers) against sex discrimination.  Neither "transgender" nor "sexual orientation" appears in the text of Title VII, which bars job bias because of religion, race, sex and other factors.

But in 1989, the Supreme Court in Price Waterhouse v. Hopkins ruled that an employer who punishes a worker because he or she does not match gender stereotypes is guilty of sex discrimination under Title VII.   This case was being cited by more courts deferring to the Hopkins precedent in favor of gay and transgender plaintiffs.  It was cited in the 2012 Mia Macy v Holder EEOC case that ruled transgender discrimination is sex discrimination.

Barnes challenged her demotion from sergeant under Title VII and the Equal Protection Clause in a case she filed with the US District Court for Southern District of Ohio in addition to taking legal aim at the odious Article XII of the Cincinnati City Charter.  

Article XII was passed by voters in 1993 as a homobigoted reaction to the city’s human rights ordinance including sexual orientation as a protected class against discrimination in 1992.   Barnes and her attorney Al Gerhartstein asserted that Article XII was a factor in this case because its existence encouraged supervisors to discriminate against his client and others based on sexual orientation.

Barnes also told the judge during the district court trial that as long as Article XII existed, she and others would continue to face discrimination.

The City of Cincinnati filed a motion to dismiss and a motion for summary judgment, which were both denied by the district court.   The City argued that a legitimate reason, poor performance, justified the demotion in this case.   The claims were submitted to a district court jury, which returned a verdict in Barnes's favor.   The jury on February 23, 2003 awarded Barnes $150,000 in compensatory damages, $140,000 in front pay and $30,511 in back pay.   The City moved for judgment as a matter of law, which was also rejected by the district court.  The district court then awarded Barnes $527,888 in attorneys fees and $25,837 in costs on February 27, 2004.  

The city of Cincinnati promptly appealed the adverse district court rulings to the Sixth Circuit Court of Appeals.  It has the reputation of being the most conservative leaning federal judicial circuit in the nation, but Barnes' case was upheld on March 22, 2005.    The Sixth Circuit agreed that Barnes had a legitimate claim of sex discrimination under Title VII. It was the second such ruling out of the Sixth Circuit, where a transgender fire fighter won the right to sue under Title VII in the July 2004 Smith v. City of Salem case.

The City of Cincinnati then appealed the Barnes case to the US Supreme Court, but on November 7, 2005  they declined to review it, which meant the ruling in Barnes favor at the Sixth Circuit level stands.   

In March 2006, the City of Cincinnati repealed the discriminatory Article XII, then passed on an 8-1 vote an anti-discrimination ordinace that added sexual orientation and gender identity to it.

So you can thank Sgt Barnes on two levels.   You can thank her for standing up for her rights and as a result of her win establishing another trans employment friendly legal precedent that happened in a conservative federal circuit.   You can also thank her for striking the legal blow that took down Cincinnati's discriminatory Article XII.

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