Zane McNeillAn exploration into the recent decision Livingood v. Public Defender Corp., Fifth Judicial Circuit
In December 2017, Robb Livingood had just left a position at a legal hotline to find a job in a full practice. Livingood had gone to law school to protect the vulnerable; he never expected that he would be the Plaintiff in a discrimination case himself. A transgender man living in West Virginia (who uses he/they pronouns), Livingood was just beginning his exploration of his gender identity Though he was presenting publicly as a masculine cisgender female, his friends used male pronouns for him, and he had legally changed his name to Robb. He wore masculine clothing and had cut his hair short.
In January, Livingood was offered an interview with the Public Defender Corporation, Fifth Judicial Circuit, a publicly funded nonprofit organization that represents indigent defendants who cannot afford private attorneys. However, when he came in for the in-person interview, the employer lost interest quickly. It seemed transphobia had led to their decision not to hire him. The interviewers seemed aloof during the interview, and Livingood had to ask his own follow up questions to attempt to move the conversation along. Despite his attempts, the interviewers showed no interest in his credentials and, according to Robb, they refused to actively examine his qualifications for the position.
“Based on the look of surprise on their faces, I think they were expecting a cis-guy,” Livingood said, noting that when they met, “I knew that I wasn’t the person that they thought of as ‘Robb Livingood.’ They had trouble believing me at first.” He recalled that his interviewers “treated me kind of like I was insane…I felt like they thought ‘this crazy woman thinks that she’s a man’.…[T]he level of awkward that I felt in the room [was like] I had shown up in like a vampire costume,”
Employment discrimination is a common problem for transgender people. Livingood felt that his civil rights had been infringed upon and, because of his legal education, knew that there were avenues that existed for him to receive relief for his damages under state law.
Was Livingood denied the job due to sex-based discrimination?
Livingood submitted a handwritten complaint to the West Virginia Human Rights Commission (“WVHRC”) in early March 2018. The Commission decided to take on the case and investigate whether Livingood was denied the job as a result of sex-based discrimination. The West Virginia Human Rights Commission investigation revealed that in response to the original job posting, only one other person had applied for the position, a cisgender man with much less experience. That applicant was offered the position but turned it down. On February 9, 2018 the Public Defender’s office reposted the vacant position, rather than offer it to Livingood.
“I felt like it was such an insult and a slap in the face to be denied based on something that had nothing to do with my hard work and talents and dedicated effort,” Livingood told Law at the Margins.
Livingood said he had sought the position “because I’m really passionate about justice. I thought ‘I want to fight for the underdog’ at the public defender’s office, and I expected the public defenders to defend the vulnerable. And who can be more vulnerable than the people on the fringes of society?” Ironically, he had thought being a lawyer would make him less vulnerable: “I used to think that if I was a lawyer, people wouldn’t mess with me then… You know if lawyers are getting treated this way, what about the people we are supposed to represent? How are they getting treated in the court systems?”
The case law surrounding Livingood’s claim of discrimination was still evolving. Bostock v. Clayton Cty. Georgia, the landmark federal case establishing that sex discrimination included sexual orientation and gender identity, had not yet been decided when the West Virginia Human Rights Commission started investigating Livingood’s case. At the time, the courts were split on whether sex discrimination encompassed sexual orientation and gender identity.
Aubrey Sparks, Livingood’s attorney with Mountain State Justice, who has worked on many on anti-trans discrimination cases, recalled, “There were some courts saying that sexual orientation and gender identity are subsumed under this idea of sex discrimination.” At the same time, Sparks explained, regardless of whether the legal basis is gender identity or sex, “either way, it would have been discriminatory. So, whether they saw Robb as a person who was a gender non-conforming woman, or a transmasculine person we had the line of argument that said ‘Ok, well if that’s sex discrimination, why wouldn’t it be sex discrimination to use those same determinations to deny someone a job when that person is trans.”
Mountain State Justice takes Public Defender Corporation to court
In January 2020, Livingood received a letter of determination from the Commission stating that its investigation had found enough evidence of possible sex discrimination to warrant moving forward with his claim. He then sought legal representation with Mountain State Justice to take the Public Defender Corporation to court.
In the respondents’ Proposed Findings of Fact and Conclusion of Law, the counsel for the Public Defender Corporation stated that Livingood “has introduced no evidence of any wrongdoing by Respondent apart from his own subjective beliefs that he was discriminated against. His Complaint contains no factual allegations; it contains only his subjective beliefs about Respondent’s motives for not hiring him.”
Counsel for the Public Defender Corporation also attempted to get the case dismissed, citing an earlier case, State v. Butler, in which the West Virginia Supreme Court of Appeals ruled that protections against sex discrimination in the state’s hate crimes statute did not cover discrimination based upon gender identity and sexual orientation. However, the West Virginia Supreme Court explicitly ruled that Butler was inapplicable to cases brought under the West Virginia Human Rights Act.
“The public defender was trying to get my claim thrown out,” Livingood explained, “by saying that I had ‘trojan-horsed’ the system by getting transgender discrimination under a sex claim…I felt like the other side was accusing me of being fraudulent by nature. ‘Robb says he’s a man, but previously he said that he was a woman. He can’t be trusted. So, he’s obviously a liar.’”
When the case wasn’t dismissed, counsel for the Public Defender Corporation alleged that they didn’t hire Livingood due to lack of experience, because of ‘bad references,’ and his wearing ‘ill-fitting’ and wrinkled clothing during the interview. Despite these allegations, the Public Defender Corporation had offered the position to a cisgender man with no work experience. Upon examination, it was also discovered that the ‘bad references’ was a single phone call to one secretary who told the interviewers that they did not provide recommendations. The issue of ‘ill-fitting’ clothing was dropped from their argument after it was pointed out that male clothes fit differently on assigned-female-at-birth (AFAB) people than on cisgender men, and that therefore this claim could be interpreted as transphobic.
Employment discrimination targets the trans community
In March 2021, West Virginia Administrative Law Judge, Gregory Evers, held a public hearing to determine if sex discrimination under the West Virginia Human Rights Act, was inclusive of gender identity and sexual orientation. Livingood testified at this hearing for two hours. In the end, Evers ruled that:
“There are many legitimate reasons for denying an employment opportunity to an individual, including non-discriminatory subjective reasons believed to interfere with the essential functions of a job, resulting in her or his not being able to provide the services required, however, choosing to reject an individual on the basis of gender identity, transgender status and non-stereotypical dress and treating that individual differently who does not fit the gender or stereotypical model that the employer envisions for its employees cannot be allowed or tolerated in a civil society which seeks to provide equal employment opportunities. If it is, what comes next? Here, in this case, a transgender lawyer simply has an equal right to employment, as does a non-transgender or ‘cisgender’ lawyer, especially when it is apparent that the person being considered for employment is the most qualified, as was Mr. Livingood under the Respondent’s original [job] posting. Such right must be protected” (Livingood v. Public Defender Corp., Fifth Judicial Circuit, ES-192-18, at 71).
Just before Christmas last year –coincidentally on the day after he underwent top surgery–Livingood learned that Judge Evers had awarded him lost wages and attorney fees totaling over $100,000.
“It was kind of a Christmas present…I made my caretaker print [a copy of the decision] because I wanted to read it and I couldn’t hold my phone in the air [because of surgery], so I sat there and read all eighty pages so proudly.”
Despite that, Livingood has not yet received the monetary relief and doesn’t know when he will. In addition, he noted, in such discrimination cases, damages related to the social and emotional impact are capped: “It’s not like they let me sue for pain and suffering…there’s a $5,000 limit on relief for emotional damages [for claims in the WVHRC].”
“It’s been four years,” he said, “and I still don’t have monetary relief from the case… It’s exhausting to be the plaintiff because the plaintiff is the one that suffers.”
Still, pressing his claim was worth it, Livingood said: “The most exciting this for me, and the thing that made me feel like ‘Oh, I did the thing that I went to law school to do, was when I was reading the judge’s language about how in West Virginia we interpret our Human Rights Act as covering LGBTQIA+ individuals. And even to see the word ‘transgender’ made my heart leap, because the Act covers housing, employment, and public accommodation.”
The future of Trans Rights in West Virginia
While the decision in Livingood v. Public Defender Corp. is unequivocally a win in transgender rights in West Virginia, the fight isn’t over. West Virginia has been identified as having some of the least protective laws in the country for LGBTQIA+ people, while having the highest population of transgender youth. And in the 2022 legislative sessions, some conservative state legislators introduced legislation that, if passed, would have overturned local bans on conversion therapy, weaken anti-LGBTQIA discrimination protections, ban healthcare for trans youth, made it more difficult for teachers to talk about racism, diversity, and inclusion in schools, and dismantle the state’s Human Rights Comission. While these bills were defeated, other legislation, such as West Virginia’s infamous law banning transgender girls from participating in school sports, is currently halted by a court challenge, and conservative lawmakers are preparing to introduce a slew of other anti-LGBQTIA legislation in the next session.
“I think it is important for us to look at the full picture and say, ‘OK, these are the places in which we need to improve [our protections for transgender and gender nonconforming individuals]” says Sparks, “Because, I certainly think that there are places in which West Virginia desperately needs to improve in terms of the protections that we offer for marginalized people generally and trans people specifically.”
Relief in court for trans West Virginians?
But transgender and gender-nonconforming West Virginians might be able to find relief in the courts. One potential benefit of West Virginia’s anti-discrimination law is that its language is relatively broad, which advocates hope makes the law flexible enough to grow alongside a changing culture. Specifically, the anti-discrimination provisions could effectively be expanded to offer protections for transgender people, since the statutory language could be interpreted to cover marginalized communities that are not explicitly named in the law.
While Livingood’s case has helped set a legal precedent which can move West Virginia laws forward to protect more transgender people in the state, Sparks said, on a social and cultural level, “It’s also important to have this opinion written by an Administrative Law Judge that unequivocally says this sort of discrimination isn’t allowed… The more times people who are discriminated against here, ‘Look you have rights. You deserve protection,’… the more often people are going to feel empowered to pursue the rights that they have and not feel like they just have to say, ‘well, I was mistreated [but] there’s nothing that can be done about it.”
