Arts & Entertainment
Court says Library of Congress cannot discriminate against transgender
by Bob Roehr
Originally printed 9/25/2008 (Issue 1639 - Between The Lines News)
A federal judge has found that the Library of Congress illegally discriminated against a transgender woman in the process of transitioning when it withdrew a job offer to her. The ruling in Schroer v. Billington came on the afternoon of July 19; the remedy has yet to be decided.
David Schroer had a 25-year career in the army. The last third was in special operations, eventually as a colonel, leading a top-secret 120-person group charged with tracking and targeting high-threat international terrorist targets. After retiring from the military, he saw that the Congressional Research Service, a part of the Library of Congress, was seeking to hire a research analyst on terrorism. Schroer seemed to be a perfect fit.
The Library agreed; it coveted the mix of boots on the ground and command level experience that it seldom can hire, and it made a job offer to Schroer at the end of 2004. Over lunch with Library official Charlotte Preece, Schroer said he was under a doctor's care for gender dysphoria, was in the process of transitioning, and would begin work presenting as a woman, Diane.
The next day, "after a long, restless night," Preece called Schroer to withdraw the offer of employment. She said Diane would not be a "good fit" with the Library of Congress.
"Did I want to just give it up and walk away? Turn tail and run, or fight it?" Schroer said during an extended interview in 2005. She weighed the options for about three hours and decided to fight it.
"After risking my life for more than 25 years for my country, I'd been told I'm not worthy of the freedoms I worked so hard to protect. All I'm asking is to be judged by my abilities rather than my gender."
The Library aggressively fought the case at every administrative, procedural and legal step, but in the end it was to no avail.
"After hearing the evidence presented at trial, I conclude that Schroer was discriminated against because of sex in violation of Title VII" of the 1964 Civil Rights Act, wrote federal district judge James Robertson. "None of the five assertedly legitimate reasons that the Library has given for refusing to hire Schroer withstands scrutiny."
Schroer already had a top secret security clearance from her work in the military. Preece assumed that her transitioning would impede quickly obtaining a clearance for her job with the Library, but "no effort was made" to determine if in fact that assumption was true.
The Library assumed that Schroer might lack credibility with members of Congress and be unable to maintain contacts with the military. Robertson found those reasons to be "explicitly based on her gender non-conformity and her transition from male to female and are facially discriminatory as a matter of law."
Furthermore, "the Library made no effort to discern if its concern was actually a reasonable one, as it easily could have done by contacting any of the high-ranking military officials that Schroer listed as references." They all were aware of her transitioning and were personally supportive.
Judge Robertson compared the legal protection of sex to that of religion. "Imagine 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."
"In refusing to hire Diane Schroer because her appearance and background did not comport with the decision maker's sex stereotypes about how men and women should act and appear, and in response to Schroer's decision to transition - legally, culturally and physically - from male to female, the Library of Congress violated Title VII's prohibition on sex discrimination," Robertson concluded.
"It is tremendously gratifying to have your faith in this country, and what is fundamentally right and fair, be reaffirmed," Schroer said in a statement released by the ACLU.
"I knew all along that the 25 years of experience I gained defending our country didn't disappear when I transitioned, so it was hard to understand why I was being turned down for a job doing what I do best just because I'm transgender."
Sharon McGowan, an ACLU attorney who argued the case, said "The court got it exactly right, sending a loud and clear message to employers everywhere: if you fire or refuse to hire someone for transitioning, you are guilty of sex discrimination and may well find yourself liable."
Kristina Wertz, legal director of the Transgender Law Center, said, "This kind of illegal discrimination is a sad reality for many people in our community; 57 percent of transgender people living in San Francisco report experiencing discrimination in employment. We need to keep winning victories like Dianes and increase legislative protections for transgender people to combat this epidemic of workplace discrimination."
"True to form, Diane Schroer has once again demonstrated her bravery and her commitment to American democracy," said Mara Keisling, executive director of the National Center for Transgender Equality. "By fighting for her rights, she has defended the honor and rights of all transgender people who have been discriminated against on the job."
"This is huge, both legally and politically. It's an enormous breakthrough in the law," Georgetown University law professor Nan Hunter wrote on her blog.
She acknowledged the uncertainty of the decision being appealed. "One cause for optimism is that the decision is based on a full factual record, including expert testimony on the key issue of gender identity being considered a component of sex. That will make it more difficult for the court of appeals to reverse it."
New York University law professor Arthur Leonard wrote on his blog, that the U.S. Supreme Court recently ducked the question of whether Title VII applies to transsexuals. "Robertson's decision provides a new theory for the Supreme Court's consideration."