District Court for D.C. Holds Gender Identity Protected by Title VII

On Friday, the District Court for the District of Columbia issued its decision  in the liability phase of Shroer v. Billington, a case brought by a woman who was transgendered against the Library of Congress.

Although born male, Diane Schroer identifies as female. She has an internal, psychological sense of herself as a woman. In August 2004, before she changed her legal name or began dressing publicly as a woman, Schroer applied for the position of Specialist in Terrorism and International Crime with the Congressional Research Service (CRS) at the Library of Congress. The terrorism specialist provides expert policy analysis to congressional committees, members of Congress and their staffs. Schroer was well-qualified for the job, having served in the U.S. armed forces in special forces and special operations and having directed an organization that tracked international terrorist groups. Although she was undergoing the long psychological and physical treatment to transition from male to female, she had not yet reached the stage of presenting herself as a woman. She applied under her legal, male name. She was the most qualified candidate in the view of the hiring staff at the Library of Congress, and was given the position. After the hiring paperwork had been submitted but before Schroer actually started work, she told her superiors that she would be transitioning to female and that when she began the job, she would do so as female. The Library rescinded the offer and gave the job to a less qualified man.

Schroer sued, and the district court found in her favor. The court held that the discrimination on the basis of gender identity is literally discrimination on the basis of sex and it is also discrimination on the basis of failing to conform to sex stereotypes, both prohibited by Title VII. The Library refused to hire her because she would not be feminine enough, in the view of one of the decisionmakers, having a particularly "macho" background and based on pictures Schroer provided of herself dressed as a woman. The court acknowledged that it was difficult to separate this motivation from the motivation  that it was Schroer's transgendered condition which made her a bad candidate, and which several courts have held is not protected by Title VII.

Ultimately, I do not think that it matters for purposes of Title VII liability whether the Library withdrew its offer of employment because it perceived Schroer to be an insufficiently masculine man, an insufficiently feminine woman, or an inherently gender-nonconforming transsexual. One or more of [the decisionmaker's] comments could be parsed in each of these three ways. While I would therefore conclude that Schroer is entitled to judgment based on a . . . claim for sex stereotyping, I also conclude that she is entitled to judgment based on the language of the statute itself.

Expert testimony conflicted over the issue of whether sexual identity is part of "sex" or "sexuality," and the extend to which a biological etiology determined identity. The court took a more pragmatic approach in deciding whether this conduct was discrimination on the basis of sex, however. The court analogized to religious conversion, stating that discrimination on the basis of conversion from Christianity to Judaism would still be discrimination on the basis of religion. "Discrimination 'because of religion' easily encompasses discrimination because of a change of religion." The library refused to hire Schroer because she was changing her physical sex through surgery. Likewise, it falls within the literal definition of "because of . . . sex."

In reaching  its decision, the court was critical of several circuit court opinions that have distinguished discrimination on the basis of "transsexualism" from discrimination on the basis of sex as using some notion of the spirit of Title VII to contradict the letter of the law, an approach to statutory interpretation that has  been clearly rejected by the Supreme Court. In all, the court's opinion is very thoughtful and thought provoking. If you have any interest in sex discrimination, gender identity issues, or Title VII, I highly recommend reading it. For a good analysis of the impact of this decision, see Nan Hunter's posts on Feminist Law Professors and hunter of justice.

MM