Friday, September 26, 2008

And High Time, Too: A Transgender Rights Landmark

A federal judge on the D.C. District Court recently issued what may become a landmark decision regarding whether people who are transitioning between genders are protected from gender-based discrimination by Title VII. In Schroer v. Library of Congress, (No. 05-CV-1090(JR)), an opinion both thoughtful and thorough, the Court found that the Library of Congress (LOC) violated Title VII when it withdrew a job offer after the otherwise-highly-qualified plaintiff disclosed that she was in the midst of a gender-transition protocol and would soon begin to dress and otherwise identify as a woman in public. The official to whom Schroer made the disclosure had literally started to write the memo recommending that she be hired when the disclosure was made but, upon learning of Schroer’s plan to change genders, decided not to recommend Schroer and instead offered the job to a significantly less-qualified male candidate who was not going through a sex-change protocol.

The rescinded job offer was for the position of Specialist in Terrorism and International Crime with the Congressional Research Service (CRS) of the LOC. The Specialist’s duties would include providing expert policy analysis to congressional committees, members and staff. Schroer had a very impressive resume, including degrees from the National War College and the Army Command and General Staff Colleges and masters degrees in history and international relations. Schroer had retired as a colonel assigned to U.S. Special Forces Command, and had 25 years of military service, including command and staff positions in the Armored Cavalry, Airborne, Special Forces, and Special Operations units, and combat operations experience in Haiti and Rwanda.

Unfortunately for Schroer, she felt the need to tell LOC about her transition plans before the job offer was formalized. She explained that dressing and presenting as a woman on a daily basis would be the next stage in the transition protocol, and showed the recommending official a photo of herself dressed as a woman. The recommending official was put off by the picture, seeing only, in her words, “a man dressed in women’s clothing,” and expressed bafflement that someone with Schroer’s extensive military background would “want” to become female. Schroer explained that her gender identity was not really a choice. The recommending official immediately contacted LOC’s security officer to ask how transgendering might affect Schroer’s chances of getting the required security clearance. Within twenty-four hours the LOC had revoked Schroer’s job offer.

As its non-discriminatory explanation for failing to hire Schroer, the agency focused on concerns about whether Schroer would be able to get a security clearance given her diagnosed gender-identity disorder (and thus her male-to-female transition). Weirdly, though David Schroer had a clearance, LOC was concerned that Diane Schroer, under her new name, somehow might not. The agency also noted that because CRS Specialists usually provide a brief bio when testifying before Congress, Schroer would lack credibility because no woman could possibly have a resume which included Schroer's particular kinds of military experience. Alternately, Schroer’s bio would tip off everyone who heard it that Schroer was a transsexual, because that was the only way a woman could possibly have such a resume.

Each of these explanations was discredited at trial. As the court noted, the agency overlooked, or made no effort to learn, the salient facts that (1) Schroer already had a security clearance at her old job, (2) clearances are usually honored by new employers as long as the investigative file is complete (Schroer’s was), and (3) Schroer’s military contacts that had so impressed the LOC when it made the job offer were well aware of the impending transition and had no intention of cutting her off because she was becoming female. Also, ironically, the person who got the job instead of Schroer had no clearance for the first several months after he was hired. Thus, none of the LOC's proffered reasons would have posed a real obstacle to hiring Schroer had the LOC made the slightest effort to learn whether they had any merit.

The Court found that the LOC had violated Title VII in two different ways: by sex-stereotyping and by discriminating “because of . . . sex.”

Sex-Stereotyping
The Court invoked a line of cases descended from Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) (female employee not promoted because she was regarded as insufficiently feminine in dress and manner). In Hopkins the Supreme Court held that “an employer who acts on the basis of a belief that a woman cannot be aggressive, or that she must not be, has acted on the basis of gender.” A hiring decision based on an employer’s negative reaction to an employee’s non-compliance with sexual stereotypes violates the statute. The Court called recommending official’s negative reaction to seeing the photos of Schroer in female clothing, and her concern that an overtly female or transgendered Schroer would not be taken seriously by Congress, “direct evidence, and compelling evidence, that the Library’s hiring decision was infected by sex stereotypes.”

Discrimination Because of Sex
The Court found that the LOC’s actions violated the plain language of Title VII, which prohibits discrimination “because . . . of sex.” As Judge Roberts noted, “The evidence establishes that the Library was enthusiastic about hiring David Schroer - until she disclosed her transsexuality. The Library revoked the offer when it learned that a man named David intended to become, legally, culturally, and physically, a woman named Diane. This was discrimination ‘because of . . . sex.’” Further, “[i]magine that an employee is fired because she converts from Christianity to Judaism. Imagine too that her employer testifies that he harbors no bias toward either Christians or Jews but only ‘converts.’ That would be a clear case of discrimination ‘because of religion.’ No court would take seriously the notion that ‘converts’ are not covered by the statute. Discrimination ‘because of religion’ easily encompasses discrimination because of a change of religion.” Refusing to hire a person because he or she is changing sexes - rather than religions - is similarly, and blatantly, discriminatory on the basis of sex.

To date, most courts have held that transgendered folks are not covered by Title VII. The Decision in Schroer expressly repudiates prior caselaw in which courts have refused to find that Title VII covers transsexuals by "focusing too narrowly on the statute’s goal of ensuring that men and women are treated equally." This decision is a major step forward by an extremely influential district court. Let’s hope that other judges within the D.C. Circuit, and the appellate court on review, will build on the enlightened approach articulated in Schroer as appropriate fact patterns present themselves in future.

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