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Fabian May & Anderson (“FMA”) attorneys Nicholas May and Lucas Kane recently obtained the first jury verdict in favor of a transgender person in a business discrimination claim in Minnesota. On Friday, December 14, 2018, after reviewing a week’s worth of evidence, a jury in Dakota County, Minnesota concluded that The Minnesota Vixen (“Vixen”) football team and the Independent Women’s Football League (“IWFL”) intentionally discriminated against their client, Christina Ginther, a transgender woman, by maintaining and applying a discriminatory eligibility policy that specifically excluded transgender women from the league. Moreover, the jury subsequently concluded that both the Vixen and the IWFL acted with “deliberate disregard” of Ms. Ginther’s rights and levied a punitive damages award against the IWFL.

But this case was never about money. Rather, Ms. Ginther and FMA felt it was important to pursue this case because the discrimination Ms. Ginther experienced is the type of discrimination transgender people experience in their everyday lives.

In the fall of 2016, Ms. Ginther was looking to find new social groups that were trans-inclusive and supportive. Ms. Ginther tried out for the Vixen given her love of athletics and the team’s claim to be LGBTQ-friendly. During the tryout period, team owner Laura Brown and the team’s coach, Brandon Pelinka, exchanged text messages about how Ms. Ginther had posted about her transition from male to female on her social media. In one exchange, they both typed “LOL” (laugh out loud). After that exchange, Ms. Ginther was told by the owner, Laura Brown, that she had “checked” with the IWFL, and it was league policy that Ms. Ginther needed to be “born female” to play. Subsequently at trial, Ms. Brown admitted that she had never contacted the IWFL about whether Ms. Ginther, as a transgender woman, was eligible to play. Evidence at trial also demonstrated that Brown and the Vixen misled another transgender woman about the status of possible changes to the IWFL’s transgender eligibility policy, shutting down that woman’s chance to play for the Vixen in the IWFL that season.

Ms. Ginther subsequently discovered that the IWFL’s eligibility policy excluded transgender players. The policy required a player to certify that she “is and always has been legally and medically female….” No transgender woman could ever truthfully make such a certification. Thus, the IWFL’s policy, on its face, prohibited transgender women from playing in the league. While the IWFL argued the policy was not discriminatory, the jury disagreed.

What was ironic about the IWFL’s discriminatory policy is that the league had previously allowed transgender women to play in the past. In the mid-2000’s, Sabreena Lachlain, a transgender female athlete, helped rewrite the IWFL’s eligibility policy to allow transgender women to play. Ms. Lachlain herself played in the league for a period of time following those policy changes. However, in 2012, the IWFL amended its policy again, this time to add the trans-exclusive language that was applied to Ms. Ginther. Evidence showed that following this amendment, the league received a number of questions about trans athlete eligibility, but took no action to correct a policy it knew was being interpreted to exclude transgender players.

Ms. Ginther knew that transgender athletes have been allowed to participate in sports consistent with their gender identity for years. In fact, both the NCAA and the International Olympic committee, among others, have developed trans-inclusive policies that are widely recognized as fair and non-discriminatory. She felt she needed to stand up and address this blatant discrimination.

More importantly, however, Ms. Ginther understood that while some acts of discrimination may seem trivial in isolation, their effect on a person’s self-worth, mental health and sense of humanity can be devastating. This is especially true for transgender people who are still one of the most discriminated against and marginalized populations in the United States. According to The Report of the 2015 U.S. Transgender Survey, published by the National Center for Transgender Equality:

  • 39% of the transgender population experiences serious psychological distress as compared to 5% of the U.S. population due to the impact of stigma and discrimination.
  • The transgender population has a suicide rate 9 times higher than the rest of the U.S. population.
  • Each year, 1 in 10 transgender people are physically attacked for no other reason than being transgender.
  • 33% of transgender patients are harassed or refused service by a medical provider for being transgender.
  • 23% of transgender patients do not seek medical care when needed out of fear of discrimination.
  • In grades K-12, 54% of transgender students are verbally harassed, 24% are physically attacked, and 13% are sexually assaulted.
  • 17% of transgender students experienced such severe mistreatment that they left a school as a result.
  • 29% of the transgender population live in poverty compared to 12% of the U.S. population, and are three times more likely to be unemployed.

Given these statistics, Ms. Ginther and FMA felt it necessary to shed light on the fact that this type of discrimination is illegal, and prove that a jury of well-meaning citizens, when given the facts, will unanimously reject this type of discrimination as unacceptable today.

The case also made clear that the discriminatory practices and policies of the Minnesota Vixen and IWFL were the exception, as transgender female athletes were widely accepted by other women’s tackle football organizations. After being discriminated against by the Vixen and IWFL, Ms. Ginther joined the Minnesota Machine in the 2017 season and the Madison Blaze for the 2018 season, both of which belong to the Women’s Football Alliance (WFA), a women’s football league that welcomes transgender athletes.

Ms. Ginther’s former teammates, coaches and team owners are celebrating the verdict against the Vixen and IWFL as a victory for both women’s tackle football and trans players. Minnesota Machine owner, Krista Clausen stated, “Women’s football is all about bringing women of all walks of life together. I’m glad that the ruling went the way it did!” Carolyn Gilde, a former Vixen player who subsequently played with Ms. Ginther on the Machine remarked, “Christina was an exceptional teammate and I am proud to have played alongside her. This is a step in the right direction for trans players and women’s football.”

Ali Bjelopetrovich, a member of the Madison Blaze coaching staff said, “When I heard what happened to Christina my first thought was I need to reach out and make sure that she knows she is loved, supported, and welcomed not only in general but also when it came to the game of football. Women’s football is and always will be a place of togetherness and inclusivity and I think the verdict will help solidify that. When Christina came to play for the Madison Blaze she was no different than any other player on the team. She was there to learn the game of football and challenge herself as an athlete. The best thing to see is the family bond that all of our girls have for each other and that you are loved and accepted for who you are. Women’s football is better because of people like Christina, willing to fight for something that should be given to all without question, inclusivity.”

Ms. Ginther’s case is significant because it is believed to be the first time a jury has rendered a decision in favor of a transgender person in a business discrimination case in Minnesota. Nicholas May, the lead attorney for Ms. Ginther, believes it is a watershed moment in the advancement and acceptance of transgender rights in Minnesota and throughout the country. “This is the first time a jury heard evidence of transgender business discrimination and unanimously said ‘This is not acceptable.’” The jury’s decision, May stated, should clearly send the message that discrimination against transgender people, in any form, will not be tolerated.

The case was brought under the Minnesota Human Rights Act’s “Business Discrimination” section, which prohibits any person from intentionally refusing to do business, refusing to contract with, or to discriminate in the basic terms, conditions or performance of a contract because of a person’s race, national origin, color, sex, sexual orientation, or disability. Being transgender falls within the Act’s definition of “sexual orientation.”

Ms. Ginther was represented by attorneys Nicholas May and Lucas Kane of the law firm Fabian May & Anderson, PLLP, located in Minneapolis, Minnesota. Fabian May & Anderson is a law firm dedicated to the protection of civil rights for all individuals, with a special concentration in employment law. Questions may be directed to Nicholas May, at 612-353-3340 and nmay@fmalawyers.com.