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Transgender volunteer sues Howard for discrimination

Tomi B. Finkle started her law enforcement career with the U.S. Capitol Police in the late 1970s, when she was a man. By the time she retired as a sergeant in 2002, she was ready to begin a new life as a woman.

The Charles County resident continued to pursue public service, and her passion for horseback riding, in her volunteer work with a regional mounted search-and-rescue team. But when she volunteered to ride with a new mounted patrol unit she says she helped Howard County police create, she was turned down.

Now she's suing the county in federal court alleging employment discrimination in a case that could bolster legal protections in Maryland for transgender people. The case comes as the General Assembly debates a statewide ban on discrimination against transgendered people in employment, housing and public accommodations.

Finkle is seeking a place on the mounted auxiliary unit and unspecified compensation for her attorney's fees.

The 11 members of the Howard County mounted unit, which started work in spring 2012, are considered auxiliary police officers. They have patrolled county walking paths and taken part in such events as Police Memorial Week, Wine in the Woods and Sunset Serenades at Centennial Park.

"I volunteered hundreds of hours with them," said Finkle, who turns 59 this month and is commander of the Trotsar mounted search-and-rescue organization. "It's as if now I didn't give them a second's worth of time."

County Solicitor Margaret Ann Nolan declined comment on the case. In court filings, the county argued Finkle cannot sue for job discrimination because a voluntary position is not employment. The county also argued that courts disagree on whether federal anti-discrimination law covers transgender people and that Finkle has not shown police officials knew she was transgender.

The Maryland Commission on Human Rights dismissed Finkle's claim last year, but not on the question of whether she was a victim of discrimination. The commission's deputy director wrote in September the case had been closed "for lack of jurisdiction over this matter because there is no established employee/employer relationship."

The Equal Employment Opportunity Commission also heard the case and gave Finkle permission to sue. An EEOC spokesman declined comment on the case, but said issuing a "right to sue" letter is routine, and does not reflect the merits of the case.

Finkle's lawyer, Matthew A. LeFande, has said that he plans to appeal if his client loses in the lower court.

The 4th U.S. Circuit Court of Appeals, which covers Maryland, has not yet weighed in on legal protections for transgender people, said Ilona Turner, legal director for the Transgender Law Center, a national advocacy group. Other federal courts have supported such legal protections, she said.

"If the 4th Circuit rules, it would be a helpful clarification," Turner said.

The county's response to Finkle's suit cites a 2013 case decided by the U.S. District Court in Maryland that says "courts have disagreed" about protections for transgender people.

Transgender or gender identity is not specifically mentioned in federal anti-discrimination law, but the U.S. Equal Employment Opportunity Commission, which enforces that law, ruled in 2012 that these categories are covered under the law. That ruling, however, is not binding on the courts, said Jer Welter, managing attorney with the Maryland-based FreeState Legal Project, which provides legal advice to lesbian, gay, bisexual and transgender Marylanders.

Welter's group is supporting a bill before the General Assembly that would ban discrimination on the basis of "gender identity." Seventeen states and the District of Columbia have already passed such laws.

The Senate gave preliminary approval to the bill Friday, and a final Senate vote could come as early as Tuesday. A House version of the measure is scheduled for an initial hearing Wednesday.

Finkle's lawsuit alleges the county violated both federal and state law, but does not mention the county's own law against discrimination on the basis of "gender identity or expression," including transgender people. The County Council passed the law in early December 2011, at the time Finkle was pursuing the volunteer position.

According to the lawsuit, she applied for the position in September 2011, passed the horseback riding test and went for an interview at police headquarters Dec. 7. Finkle walked to the interview room, "she was confronted" by Police Chief William McMahon, who wanted to know why Finkle was applying for the position, the lawsuit states. After talking with Finkle, McMahon "said 'good luck' and walked away," according to the suit.

The lawsuit alleges McMahon conveyed objections about Finkle to Lt. Timothy Black, who was leading recruitment for the volunteer patrol.

In late December, Black told Finkle she "did not make the cut," that she was "overqualified" for the position and the department could not accept a retired officer or one who lived so far away.

In March 2012, according to the suit, Finkle learned the department selected another retired officer for the unit, and at least two people who lived on the Eastern Shore, farther from Howard County than where Finkle lives.

Because Finkle was qualified for the patrol, and based on the reasons Black gave for her not being selected, LeFande said, "We infer he was ordered to do that." He said he doesn't have direct knowledge of such an order. "Obviously, we can't see what goes on behind closed doors," LeFande said.

The county pointed out in court documents that Finkle presented no evidence to support that claim. "Presumably, if facts existed that would take this out of the realm of speculation, Ms. Finkle would have alleged them in the Complaint," the county said in the court filing.

The county also argued there's no evidence McMahon or officials on the three-member interview panel knew Finkle was transgender. But in court filings, she questioned whether "any other reasonably sentient person" wouldn't have known she was transgender, given that she's 6-foot-3-inch tall, weighs 220 pounds and is broad-shouldered.

arthur.hirsch@baltsun.com

Copyright © 2014, The Baltimore Sun
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