Petitioner, CONNIE FISHBAUGH, filed a
complaint of discrimination pursuant to Florida Civil Rights Act
of 1992, Sections 760.01-760.11, Florida Statutes,
alleging that the Respondent, BREVARD COUNTY SHERIFF’S
DEPARTMENT, committed an unlawful employment practice causing
her to terminate her employment because of disability and gender
(sex). The allegations set forth in the complaint were
determined to be outside the jurisdiction of the Commission and
on February 21, 2003, the Executive Director issued his
determination of no jurisdiction. The Petitioner filed a
Petition for Relief. The final hearing was placed in abeyance
following a telephonic hearing in which the parties agreed to
file stipulated facts, briefs and proposals on the issue of
whether transsexualism is a disability under the Florida Civil
Rights Act of 1992 and whether transsexuals may maintain an
action for sex discrimination under said Act.
Administrative Law Judge Daniel M. Kilbride,
having considered the filed materials, issued his Recommended
Order of Dismissal dated March 21, 2003.
The Commission panel designated below
considered the record of this matter and determined the action
to be taken on the Recommended Order.
Findings of Fact
The ALJ found that the Petitioner suffered
from a Gender Identity Disorder (GID), also know as
transsexualism, which is a recognized mental health disorder
under both the Diagnostic and Statistical Manual of Mental
Disabilities (4th ed.) and the International
Classification of Disease (World Health Organization, 10th
ed.). The ALJ further goes into the method of treatment and
impact of the disorder on the Petitioner, including
sex-reassignment therapy. He found that, several years
following her surgery, Petitioner applied for a position with
the Respondent and successfully completed the required
pre-employment medical and psychological testing. She informed
them of her transgender status before she applied, and was hired
as a deputy sheriff with no restrictions nor accommodations on
her ability to perform the essential functions of her position.
We adopt the Administrative Law
Judge’s findings of fact.
Conclusions of Law
As to disability basis
The ALJ concluded that there is no basis for
a finding that transsexualism is a disability pursuant to FCRA
because the underlying federal law and the regulations that
construe the ADA and the Rehabilitation Act specifically exclude
the condition of transsexualism as a disability. He concluded
that Florida should follow those interpretations. He limited
the application of the prior FCHR case of Smith v. City of
Jacksonville, Jacksonville Correctional Institute, DOAH #
88-5451, 1991 WL 833882 (1991); FCHR # 86-985 (1992), because it
involved a pre-operative transsexual with significant medical
disabilities and the facts in the case occurred under the
Florida Human Rights Act of 1977 and was prior to the enactment
of the Florida Civil Rights Act of 1992 and the federal ADA and
the amendments to the Rehabilitation Act. The Panel agreed with
Since the Panel determined that
transsexualism was not a covered disability under FCRA, it did
not need to find that Petitioner established a prima facie
case of disability discrimination. The Petitioner must
establish that (s)he is handicapped within the meaning of the
ADA or the Florida Civil Rights Act of 1992 (§760.10, Florida
Statutes (2000) ). Milton v. Scrivner, Inc.,
53 F.3d 1118, 1123 (10th Cir.1995); Brand v. Florida Power
Corp., 633 So.2d 504, 509-10 (Fla. 1st DCA 1994). This can
be shown either by demonstrating a physical impairment that
substantially limits one or more of the major life activities
and presenting a record of such an impairment; or being regarded
as having such impairment. 42 U.S.C. § 12102(2); 29 C.F.R. §§
In the instant case, however, it should be
noted that there was no showing that the Petitioner is currently
suffering from a disability that is an impairment that
substantially limits one or more of the major life activities.
In fact, the ALJ specifically found that, prior to undergoing
sex-reassignment, Petitioner experienced many of the same
impairments found in the Smith case, but that, after
undergoing sex-reassignment, Petitioner successfully completed
Respondent’s required pre-employment medical and psychological
testing. She did not have any restrictions or request any
accommodations on her ability to perform the essential
requirements of her position.
As to sexual discrimination basis
Although Title VII does not contain the
specific prohibition found in the ADA and Rehabilitation Acts,
it does have a significant case history that is instructive.
The ALJ concluded that Petitioner has alleged
that Respondent discriminated against her because she is a
transsexual and not because she is a woman. He concluded that
the reasoning in Ulane v. Eastern Airlines, Inc. 742 F2d
1081 (7th Cir. 1984) applies in which the court
rejected transsexualism as being protected by Title VII and,
thus the FCRA. The ALJ further concluded that, although some
states have adopted “more liberal definitions of ‘sex’ to
include sexual orientation,” there is no statutory nor case law
to suggest that Florida is one of those states that has
recognized transsexualism as a class protected from
Both sides have cited cases where sex
discrimination has been found, or not found, involving sexual
orientation and gender based harassment. Each side seems to
rely upon a major case which is immediately distinguished or not
followed in significant cases later heard.
For example, the ALJ relies upon Holloway
v Arthur Andersen & Co., 566 F2d 659 (9th Cir.
1977) to support his reliance upon Ulane, supra.
The Petitioner points out that the same court, in Schwenk v.
Hartford, 204 F.3d 1187, at 1201 (9th Cir.
2000) overruled its holding in Holloway by adopting “the
logic and language of Price Waterhouse v. Hopkins, 490
U.S. 228 (1989).” Similarly, the reliance of the Petitioner on
the expansion of actionable items under Oncale v. Sundowner
Offshore Oil Services, Inc., 523 U.S. 75 (1998), is somewhat
misplaced by the failure of a number of courts to extend it and
often restricting it solely to the facts before the Oncale
court; thereby, “distinguishing” that case and its holdings
from theirs. See, Simonton v. Runyon, 232 F3d 33 (2nd
Cir. 2000); see also, Valdez v. Clayton Industries, 107
Cal Rptr2d 15 (Cal.App.2nd DCA 2001), EEOC v. Harbert-Yeargin,
Inc., 266 F3d 498 (6th Cir. 2001); Johnson v.
Fresh Mark et al., 2004 WL 1166553 (6th Cir.
The Price Waterhouse case, however,
deals with discrimination of a woman and does not set out a
separate “protected class” for transsexuals. Therefore, the
issue as posed by the ALJ is somewhat misleading. It would be
better stated, “Can a transsexual maintain a case of sex
discrimination in the workplace?” The ALJ failed to consider
under what conditions may a transsexual, as a woman or man,
maintain an action for discrimination based on sex.
Petitioner argues in her exceptions that the
ALJ mischaracterizes Petitioner’s claim. The ALJ stated that
Petitioner has alleged that Respondent discriminated against her
because she is a transsexual and not because she is a woman.
Petitioner states that her claim is based on a claim of sex
(gender) discrimination as a woman where the complainant is
perceived not to conform to sex stereotypes or because the
complainant has changed sex. The Commission concludes that the
reasoning in Price Waterhouse v. Hopkins, 490 U.S. 228
(1989), applies where the court found that a claim of
discrimination could be found where a perception that a person
failed to conform to stereotyped expectations of how a “woman”
should look and behave. See, also, Oncale v. Sundowner
Offshore Oil Services, Inc., 523 U.S. 75 (1998) to show that
evils not specifically contemplated by Congress when it enacted
Title VII can still be found discriminatory. Therefore, a
transsexual, as a man or woman, may maintain an action for
discrimination based on sex.
We modify the conclusions of law
In modifying these conclusions of law of the
Administrative Law Judge, we conclude:
(1) that the conclusions of law being
modified are conclusions of law over which the Commission has
substantive jurisdiction, namely conclusions of law stating what
must be demonstrated to establish a prima facie case of unlawful
discrimination under the Florida Civil Rights Act of 1992; (2)
that the reason the modification is being made by the Commission
is that the conclusions of law as stated run contrary to
previous Commission decisions on the issue; and (3) that in
making these modifications the conclusions of law we are
substituting are as or more
reasonable than the conclusions of law which
have been rejected. See, Section 120.57(1)(l), Florida
We adopt the Administrative Law
Judge’s conclusions of law as modified.
Petitioner filed exceptions to the
Administrative Law Judge’s Recommended Order in an eleven page
document entitled, “Petitioner’s Exceptions to Recommended Order
of Dismissal.” Exceptions one through three dealt with the
claim for discrimination based on disability and are stricken.
Exceptions four and five relate to the claim for discrimination
based on sex and are accepted to the extent they support the
conclusions of the Commission that, as a man or woman,
transsexuals may maintain an action for sexual discrimination.
The Request for Relief and Complaint of
Discrimination on the basis of disability is DISMISSED with
The Complaint of Discrimination
on the basis of sex is hereby reinstated and a finding is made
that the Commission has jurisdiction to investigate said
complaint consistent this order.
The parties have the right to seek judicial review of this
Order. The Commission and the appropriate District Court of
Appeal must receive notice of appeal within 30 days of the date
this Order is filed with the Clerk of the Commission.
Explanation of the right to appeal is found in Section 120.68,
Florida Statutes, and in the Florida Rules of Appellate
Done and Ordered this 20th day of August, 2004.
For The Florida Commission on Human Relations.