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Officer’s transgender bias suit survives challenge by Howard Co.

A transgendered former U.S. Capitol Police officer can pursue her sex discrimination lawsuit against Howard County for rejecting her application to serve on a horse-mounted patrol force, a federal judge in Baltimore has ruled.

Judge James K. Bredar rejected the county’s motion to have the case dismissed, saying that Tomi Boone Finkle has raised a sufficient claim that Howard County Police Chief William McMahon denied her a position on the department’s Volunteer Mounted Patrol in violation of federal and state laws barring sex discrimination in the workplace.

The county denies the allegation of unlawful discrimination.

“Howard County is fully supportive of the rights of transgendered individuals and has been for a long time,” county spokesman David Nitkin said Friday.

In its motion to dismiss, the county also argued that Title VII of the 1964 federal Civil Rights Act and the analogous state law do not apply, since Finkle had not raised a claim of gender discrimination — that is, she does not claim that McMahon discriminated against her because she is a woman.

But Bredar, citing the Supreme Court’s 1989 decision in Price Waterhouse v. Hopkins, said the prohibition on sex discrimination also bans discrimination based on gender stereotypes.

“Indeed it would seem that any discrimination against transsexuals (as transsexuals) — individuals who, by definition do not conform to gender stereotypes — is proscribed by Title VII’s proscription of discrimination on the basis of sex as interpreted by Price Waterhouse,” Bredar wrote Thursday in U.S. District Court.

The county also argued that the laws apply only to paid employment, while patrol members are volunteers. However, Bredar noted that the patrol members do receive a compensation package that includes insurance coverage for death or other injury.

Finkle was rejected for the patrol in December 2011. In 2012, Howard County enacted an ordinance banning job discrimination based on an applicant’s transgender status.

Also, the General Assembly enacted a statewide ban that will apply Oct. 1. Gov. Martin O’Malley is expected to sign it into law soon.

Although neither the county nor coming state law applies to Finkle’s case, Bredar’s order “necessarily reflects the intent of [those] laws that say you cannot discriminate because they look or act differently than you would like them to,” said Finkle’s attorney, Washington solo practitioner Matthew A. LeFande.

Bredar’s ruling makes clear that “discrimination based on any nonconforming gender identity or conduct is impermissible in this day and age,” LeFande added.

The ruling allows the legislation to move forward toward trial.

“We do not believe that the facts, when fully vetted, will support a claim that Ms. Finkle was discriminated against because she is transgendered, and we deeply regret that she felt that way,” said Nitkin, the county spokesman.

Finkle, who had retired as a sergeant from the Capitol Police after 25 years, applied for a position on the mounted patrol in September 2011 and passed the department’s horse-riding skills test, according to her complaint.

But when she reported for her interview on Dec. 7, 2011, McMahon “demanded” to know why she was applying and simply said “good luck” to her upon hearing her explanation, the complaint stated.

About two weeks later, Finkle was told she had been rejected and asked why.

Finkle claims she was told the county was not hiring any retired police officers and that, as a Charles County resident, she lived too far away.

But in March 2012, Finkle said she discovered that another retired police officer was hired for the patrol and that at least two of its members lived farther away than she did, according to her complaint.

“On information and belief, Chief McMahon ordered Lt. [Timothy] Black and the other members of the selection panel to deny a position to Sgt. Finkle because of her obvious transgender status,” states the complaint filed Oct. 31 in U.S. District Court in Baltimore.

Finkle’s lawsuit has attracted widespread attention. Last week, four national and two local civil rights groups sought to submit a joint memorandum in opposition to the county’s motion to dismiss.

But Bredar rejected the groups’ submission as untimely. The groups did not submit their memorandum until more than 100 days after the county had moved to dismiss the case and 73 days after Finkle had filed her reply to the county, Bredar said.

The groups were Lambda Legal, the Transgender Law Center, the National Center for Lesbian Rights, the Free State Legal Project Inc. in Baltimore, the American Civil Liberties Union and the ACLU of Maryland. The groups were represented by Bill Lann Lee, who served as assistant U.S. attorney general for civil rights under President Clinton and is now with Lewis, Feinberg, Lee, Renaker & Jackson P.C. in Oakland, Calif.