April 7, 2006

D.C. court expands 1964
rights law a little more

by Eric Resnick

Washington, D.C.--In a ruling that confirms the 1964 civil rights law also covers some transgender people, a judge has found that a transsexual research analyst has a claim against the Library of Congress for discrimination by sex stereotyping.

The case is the first to clarify when the Civil Rights Act of 1964 can be applied to transsexuals since the landmark 2004 Smith v. City of Salem, Ohio decision. In that case, the Sixth Circuit Court of Appeals was the first to rule that the act�s Title VII against sex discrimination covered a firefighter transitioning on the job.

In the new case, District of Columbia District Judge James Robertson said March 31 that Diane J. Schroer has a claim of discrimination in her suit against the Congressional Research Service of the Library of Congress.

�What matters is the motivation of the decision maker,� wrote Robertson, setting forth the criteria for when actionable discrimination occurs.

Schroer applied for a position at the library in August 2004 as David Schroer.

She is a graduate of the National War College and the Army Command and General Staff College and a 25-year veteran, having served with the United States Special Operations Command, which directs operations designed to disrupt terror threats. She also holds a masters degree in history and international relations.

The position includes analyzing highly sensitive intelligence, then briefing the vice president, secretary of defense, and the joint chiefs of staff.

The selection committee called Schroer�s skills �far superior to those of the other candidates,� and made an exception to the compensation scale in order to hire her away from the private consulting firm she was working for.

Before starting the job, Schroer disclosed that she was under a doctor�s care for gender dysphoria and would be presenting as a woman when she started work.

The head of the committee told Schroer she had �really given [her] something to think about,� then called the next day after a �long restless night� that �for the good of the service,� Schroer would not be a good fit at the library.

The ACLU represents Schroer.

Bedford attorney Randi Barnabee, who represented Jimmie Lee Smith in the Salem case, said the D.C. case �is the best decision other than Smith,� and validates it completely, repudiating older rulings that could possibly cast doubt on Smith and a similar Sixth Circuit case, Barnes v. City of Cincinnati, involving a police officer.

Judge Robertson acknowledged that there are two lines of cases that stem from the 1989 U.S. Supreme Court decision Price Waterhouse v. Hopkins, which was the first case to allow sex stereotyping claims to be brought under Title VII.

The two are the 1984 Ulane v. Eastern Airlines from the Seventh Circuit and Smith.

The Ulane line relies on congressional intent, saying that Title VII cannot cover transsexualism or gender identity because Congress �had a narrow view of sex in mind� and �never intended that this 1964 legislation apply to anything other than the traditional concept of sex.�

Although Price Waterhouse is more recent, some circuit courts still relied on Ulane, most notably in truck driver Peter Oiler�s 2002 discrimination suit against Winn-Dixie, where Oiler�s off-duty cross dressing was deemed not protected.

The Smith cases say that discrimination can occur when someone doesn�t conform with gender stereotypes--behavior that occurs because of the person�s sex and is counter to the employer�s stereotypical perceptions.

�It follows that employers who discriminate against men because they do wear dresses and makeup, or otherwise act femininely, are also engaged in sex discrimination, because the discrimination would not occur but for the victim�s sex,� said the Sixth Circuit.

�In other words,� wrote Robertson, �it creates space for people of both sexes to express their sexual identity in non-conforming ways.�

Robertson then broke new ground.

�The problem [Schroer] faces is not because she does not conform to the library�s stereotypes about how men and women should look and behave--she adopts those norms,� wrote Robertson. �Rather, her problems stem from the library�s intolerance toward a person like her, whose gender identity does not match her anatomical sex.�

Robertson, according to Barnabee, also set the design for the future of cases of this type by stating that the arguments in Ulane, though �persuasive when written, have lost their power after twenty years of changing jurisprudence.�

Robertson, like the Sixth Circuit in Smith but more forcefully, hinted that Title VII could similarly cover sexual orientation.

�Moreover, the failure of numerous attempts to broaden Title VII to cover sexual orientation says nothing about Title VII�s relationship to sexual identity, a distinct concept that is applicable to homosexuals and heterosexuals alike,� wrote Robertson.

The future of the case is not yet known.

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