Case Examines the Law Regarding Transgender Discrimination
By: Gerri L. Elder
A lawsuit that is being called a very significant case by law experts is going to trial this week in federal court in Washington, D.C.
The case involves transgender job bias allegations against the Library of Congress and has potentially major implications for federal anti-discrimination policy.
The National Law Journal reported that retired, decorated Army Colonel Diane Schroer will face off against the library in Schroer v. Billington, No. 05-1090, with U.S. District Judge James Robertson presiding.
Schroer alleges that the library violated the ban on sex discrimination in employment practices that is mandated by federal law. However, the case greatly revolves around whether or not the ban extends to transgender people.
In the lawsuit, which was brought by the American Civil Liberties Union, Schroer claims that the library rescinded a job offer that had been extended to her. Schroer had allegedly accepted the position, but the job offer was withdrawn after she disclosed to the potential supervisor that she was in the process of transitioning from a male to a female.
Legal experts say that because the lawsuit has been filed against the federal government, the outcome could impact federal employment policy. It is also significant, according to employment discrimination scholar Arthur Leonard of New York Law School, that the case addresses transgender people.
The lawsuit addresses an emerging issue of whether or not transgender people are protected by the federal law's provisions against sex discrimination.
Some states have already addressed the issue of workplace discrimination based on gender identity. Twelve states and the District of Columbia have passed laws banning this type of discrimination.
Federal legislators have been slower to act on the issue; until recently, federal courts have ruled that there is no protection from discrimination based on gender identity under the major federal job bias law.
However, the U.S. Supreme Court ruled in 1989 that transgender people may be protected under federal law in some cases when they are discriminated against because they do not conform to gender stereotypes.
Judge Robertson previously denied a motion by the federal government to dismiss the Schroer lawsuit. Robertson's decision cleared the way for Schroer to pursue her sex stereotyping claim against the library. However, Robertson did not rule either way as to whether or not gender identity discrimination violates the federal job bias law.
Schroer served 25 years in the U.S. Army and headed a classified national security operation while serving as an Airborne ranger, qualified Special Forces officer. She applied for, was offered, and accepted a position as the senior terrorism research analyst at the Library of Congress.
According to the lawsuit, Schroer met with her future supervisor and explained that she was undergoing treatment for gender dysphoria, which is the clinical term used when a person is transgender. She says that she explained to her future boss that she would be using a name that is traditionally feminine, rather than her given name, David. She also stated that she would report to work dressed in clothing typically worn by females, but would not have sexual reassignment surgery for at least a year.
One day after this meeting with the supervisor and explaining her situation, Schroer says that the job offer was withdrawn.
Schroer is represented by lawyer Sharon M. McGowan of the ACLU. McGowan argues that discriminatory intent is evidenced by admissions of the supervisor, statements and actions of the colleagues whom the supervisor consulted about whether to rescind the job offer, and e-mails and documents created at the time of the decision.
District of Columbia U.S. Attorney Jeffery Taylor represents the library in the case. Although Taylor is well aware of Robertson's ruling on the sex stereotyping claim, he begs to differ and argues that transsexuals are not a protected class under federal law. Taylor also says that gender identity disorder is not the same thing as a failure to conform to sex stereotypes.
The government maintains that there was no discrimination. Taylor says that the job offer was rescinded because, among other concerns, Schroer would have to undergo a lengthy security check and might have been unable to maintain high-level military intelligence contacts. The library also says that there were concerns that Schroer might not be viewed as credible by members of Congress.
Both sides are headed to court to argue the case on August 27.