By Dan Horn
The Cincinnati Enquirer

Philecia Barnes, formerly Phillip Barnes, and attorney Al Gerhardstein announce plans to seek an injunction against Article XII at Cincinnati City Hall on Thursday. (Gary Landers photo) | ZOOM |

A Cincinnati police officer won $320,000 from the city Thursday after a federal jury concluded that he was unfairly demoted because of his desire to change his gender from male to female.

Because of that court victory, the officer is now challenging one of the most controversial laws in Cincinnati: the charter amendment that prohibits gays and lesbians from receiving protection from discrimination.

Phillip Barnes, now known as Philecia Barnes, told a federal judge that he would continue to face discrimination as long as the charter amendment remained on the books.

The officer's case is the most serious legal challenge in years to the amendment, officially known as Article XII of the city charter.

If the judge agrees with Barnes, the 10-year-old amendment could become unenforceable, opening the door for new laws that forbid discrimination against people based on their sexual orientation.

"Article XII sends the wrong message," said Barnes' attorney, Al Gerhardstein. "Its clear implication is that gays, lesbians and transgender people have less rights than other people in the city."

Gerhardstein said Article XII was a factor in Barnes' case because the amendment encourages supervisors to discriminate against him and others based on sexual orientation.

He said Barnes' intention to change his gender was the only reason for his demotion from the rank of sergeant to patrol officer during his probationary period three years ago. He also noted that no other sergeant has ever been demoted during the six-month probationary period.

City attorneys, however, say Barnes was demoted because of his performance, not because of his desire to become a woman. And they say Article XII has nothing to do with the case.

"This person unequivocally failed probation," said City Solicitor J. Rita McNeil. "This is not about Article XII. The issue is performance."

She said the city would appeal the jury's verdict and fight any attempt to throw out Article XII.

During Barnes' two-week trial in U.S. District Court, city attorneys argued that Barnes' grammar, time management and paperwork were not adequate. Barnes, who scored 18th among 150 officers on the sergeant's exam, said his work was not the issue.

"I could easily have adjusted to being a sergeant," Barnes said.

Instead, Barnes said, his supervisors singled him out because he was in the process of changing his gender. Although he dressed as a man at work, many of his co-workers knew that he dressed as a woman during off hours.

"Men have real issues with masculinity," Barnes said Thursday. "Some of them saw me as some kind of threat."

Despite Barnes' victory in court, he still must seek reinstatement to the job of sergeant. He asked U.S. District Judge Susan Dlott to grant that reinstatement in a motion filed with the court Thursday.

And as part of that motion, he asked the judge to block enforcement of Article XII.

The amendment has been a source of controversy since Cincinnati voters approved it in 1993. Gay rights organizations have complained that it allows discrimination against gays and lesbians, while supporters contend that it merely prevents the creation of "special rights" for homosexuals.

Opponents have twice failed to persuade courts to declare the law unconstitutional. But Gerhardstein said Barnes' case is different because the jury verdict suggests Article XII is actually being used to discriminate.

Critics of Article XII say the jury verdict validates the argument they have been making for years.

"The city has a discriminatory law on its books," said Gary Wright, co-chair of Citizens to Restore Fairness, a group dedicated to repealing Article XII. "The people who designed Article XII intended that people could be fired because of their sexual orientation."

Supporters of the law say Barnes' case illustrates why Article XII was needed.

"This flies in the face of common sense reasoning," said Phil Burress, president of Citizens for Community Values. "Frankly, if a person cannot decide if they are a man or a woman, they need psychiatric help. That's what should have been ordered in this case."

E-mail dhorn@enquirer.com