December 20, 2007
Transsexual May Proceed with Title VII Claim--Schroer v. Billington (D.C. 2007)
The United States District Court for the District of Columbia had an opportunity to rule on a second motion to dismiss based on a transsexual's Title VII claim. Schroer v. Billington, 2007 WL 4225667 (D.D.C. Nov. 28, 2007). The plaintiff, a male-to-female transsexual was first hired by the Congressional Research Service for a position as a terrorism research analyst as a man. Id. at *1. Shortly after she was hired, however, she met with Charlotte Preece to discuss her position over lunch. Id. At that time, Schroer informed Preece that she was undergoing a transition from male to female and that she was about to change her name and begin dressing as a woman. Id. Preece said that Schroer had given her something to think about and proceeded to terminate Schroer's employment. Id. The amended complaint also notes that Schroer was not hired because "in Preece's view, Schroer's 'appearance when presenting as female would not conform to [members of Congress'] social stereotypes regarding how women should look[.]'" Id. at *2. Among Schroer's claims was a Title VII claim based on discrimination "because of . . . sex." 42 U.S.C. sec. 2000e-2(a)(1). Id. at *1
The court denied Billington's (chief librarian of the CRS) first motion to dismiss, asking "the parties to develop a factual record that 'reflects the scientific basis of sexual identity in general, and gender dysphoria in particular.'" Id. at *2. The parties compiled the record and the defendant filed a second motion to dismiss. Id.
The court denied the motion to dismiss for the Title VII claim because Schroer was able to set forth a Price-Waterhouse sex stereotype claim. Id. at *4. The court points out that the fact that Schroer is transsexual is not in and of itself a bar to her claim. Id. at *3. Similarly, if Schroer had been discriminated against solely because of her disclosure of her gender dysphoria (or only because she was a transsexual), she could not make out a claim. Id. However, here, where she was discriminated against for her failure to "conform to Preece's sex stereotypical notions about women's appearance and behavior[,]" her Title VII claim survives the motion to dismiss. Id.
Interestingly, the court goes on to make two additional points:
(1) The defendant's definition of sex for Title VII purposes is too narrow if it is simply based on a person's genetic make-up. Sex includes gender discrimination as well. Id. at *4 (citing Smith v. City of Salem, 378 F.3d 566, 573 (6th Cir. 2004)).
(2) The plaintiff's defintion of sex under Title VII, however, "may be too expansive." Id. Here, the court addresses the legislative history surrounding the ENDA. The court notes that Congress did not pass a version of the ENDA encompassing gender identity discrimination and, to the extent that legislative history is a factor in statutory interpretation, "one proceeds with caution when even one house of Congress has deliberated on a problem and . . . negotiated a compromise solution." Id.
Thus, the court seems to imply that whatever sex stereotype discrimination may include (after Price Waterhouse) it may not include discriminaton based on "gender identity." This is a fine line to draw in the sand, it seems. Or, perhaps the court is simply re-stating what many other courts have said already: one cannot bring a claim simply because he or she was discriminated against because of his or her transsexuality, but only if he or she can demonstrate that gender stereotypes came into play in the hiring/firing/etc. decision. This type of analysis, however, can be easily manipulated. If a court would like to get rid of a particular plaintiff's claim, they merely have to pile enough "facts" into the "gender identity" camp. If they would like to let the claim stand, on the other hand, they can construe those exact same facts as "gender stereotypes."
If only Congress would pass a version of the ENDA protecting against sexual orientation discrimination and gender identity discrimination, alike, we could avoid this messy logic.
December 18, 2007
Neither Illinois/Minnesotta Law Prohibits GSA Contract
In an unpublished opinion, the Minnesota Court of Appeals held that the parties' gestational-surrogacy agreement would be upheld and enforced the choice-of-law provision (interpreting the contract under Illinois law). See In re Paternity & Custody of Baby Boy A., 2007 WL 4304448 (Minn. Ct. App. Dec. 11, 2007). Even though the court upheld the choice of law provision and applied Illinois law, the court went on to state that the GSA did not violate Minnesota public policy. Id. at *6-7. Interestingly, the neither one of the parties lived in Illinois and the contract was not executed there. However, the performance of the contract (or the artificial insemination of the surrogate) took place in Illinois. And, because the parties entered into the contract in good faith "without the intent to evade the law" (as Minnesota law does not clearly forbid GSAs), the court enforced the choice of law provision. Id. at *3. Illinois law, however, provides a clear statutory method for interpreting GSAs (however, because the parties entered into this particular GSA before the effective date of the statute, it was not binding on the parties in this case). Id. at *3, 7.
Hammer v. UM case gains press recognition
In an earlier post, I described the ongoing litigation between Professor Hammer and the Univ. of Michigan. Prof. Hammer asserts that he was denied tenure and subjected to a hostile work environment on the basis of his sexual orientation. This lawsuit could shape the law, Jon Davidson (director of Lambda Legal) points out, in those states (like Michigan) that do not have a statute on the books prohibiting workplace discrimination on the basis of sexual orientation. See the Article in Bloomberg.com. Also, take a look at the earlier post where I mention that this "contract" theory of the case stems from the lack of other, statutory claims.