Transgender Lieutenant’s Pronoun Bias Case Revived by 11th Cir.

A transgender male corrections officer demonstrated that he suffered intentional and repeated misgendering by supervisors and co-workers at the Georgia Department of Corrections, a federal appeals court found.

The US Court of Appeals for the Eleventh Circuit ruled Thursday that the statements made about Tyler Copeland’s gender identity and his preferred pronoun were sufficiently severe or pervasive to give rise to an objectively hostile work environment claim under Title VII of the 1964 Civil Rights Act.

“Copeland has put forward evidence sufficient to enable a reasonable jury to conclude that the harassment was severe,” Judge Jill A. Pryor wrote for the Eleventh Circuit. “A reasonable jury could find that the harassment continued despite Copeland’s objections, supervisors participated in the harassment, and the harassment took place in the correctional context.”

Eleventh Circuit precedent has “long recognized that harassment is more severe when it occurs ‘despite the employee’s objections,’” the ruling said, citing Copeland’s repeated complaints—without success—about his coworkers’ treatment of his gender. Human resources personnel also declined to intervene, the court said.

Copeland’s 17 recorded instances of harassment over a one-year period were overlooked by a federal district court in Georgia that dismissed his case in August 2022, the appeals court also found.

The ruling comes as federal courts are grappling with legal battles over misgendering and the use of pronouns in the workplace, particularly in the face of religious freedom claims.

Copeland’s lawsuit drew the attention of the US Justice Department, which participated in November oral arguments as amicus curiae and argued that a reasonable jury could support his hostile work environment claim. The near-constant misgendering and inappropriate remarks interfered with Copeland’s ability to do his job as a supervisor, DOJ attorney Jason Lee said.

But the Eleventh Circuit upheld the district court’s dismissal of Copeland’s retaliation and failure-to-promote claims, ruling that “he has submitted no evidence of when he actually applied for and failed to receive the promotions he claims GDOC withheld as retaliation for his protected activity.”

Copeland joined GDOC in 2014 as an officer at Rogers State Prison in Reidsville, Ga., and was later promoted to lieutenant.

Both management and Copeland’s subordinates made jokes about his genitalia, called him “baby girl” and regularly referred to him as “ma’am” over the prison-wide two-way radio channel that everyone could hear, Copeland’s attorney, Kenneth E. Barton III of Cooper Barton & Cooper LLP, told the court during oral arguments.

G. Todd Carter of Brown, Readdick, Bumgartner, Carter, Strickland & Watkins LLP, an attorney for the Georgia Department of Corrections, acknowledged that Copeland was referred to as “ma’am.” But that reference is “not an inherently offensive term,” and what Copeland experienced wasn’t sufficiently severe or pervasive enough to support a harassment claim, Brown said.

Copeland could’ve also disciplined his subordinates who repeatedly misgendered him, the attorney added.

Judges Charles R. Wilson and Andrew L. Brasher joined the decision.

The case is Copeland v. Ga. Dep’t of Corr., 11th Cir., No. 22-13073, 3/28/24.