A transgender job bias suit against the Library of Congress moves to trial Tuesday in federal court in Washington, D.C., with potentially major implications for federal anti-discrimination policy.
U.S. District Judge James Robertson will preside over the bench trial in Schroer v. Billington, No. 05-1090, in which retired, decorated Army Colonel Diane Schroer contends that the library violated the federal law's ban on sex discrimination in employment practices.
The library, she charges in a suit brought by the American Civil Liberties Union, rescinded a job offer that Schroer had accepted after her disclosure to her future supervisor that she was in the process of transitioning from a male to a female.
'VERY SIGNIFICANT' CASE
"This is potentially very significant, partly because the case is against the federal government, which could impact federal employment policy and people all over the country," said employment discrimination scholar Arthur Leonard of New York Law School. "It also is addressing an emerging issue as to whether people whose gender identity differs from the norm would be protected by the law's provisions against sex discrimination."
Twelve states and the District of Columbia have laws specifically banning workplace discrimination based on gender identity. But courts have moved slowly to recognize protection under the major federal job bias law -- Title VII of the Civil Rights Act of 1964. Until recently, federal courts have held there is no protection. But a 1989 U.S. Supreme Court ruling has led some federal courts to begin to hold that, under some circumstances, Title VII may protect transgender people who are discriminated against because they do not conform to gender stereotypes.
In an earlier ruling denying the government's motion to dismiss the Schroer suit, Robertson held that Schroer could proceed with her Title VII sex stereotyping claim, but he left unresolved whether gender identity discrimination alone violates Title VII's plain language.
Schroer, a 25-year Army veteran who headed a classified national security operation while serving as an Airborne ranger, qualified Special Forces officer, applied for, was offered, and accepted, a position as senior terrorism research analyst with the Library of Congress.
But the job offer was withdrawn one day after Schroer, in a meeting with her future boss, explained that she was under a health care provider's care for gender dysphoria, the clinical term used to describe the experience of being transgender. Schroer explained she would be using a traditionally feminine name (Diane instead of David) and would dress in traditionally feminine clothes when she started the new job, and would not have sexual reassignment surgery for at least a year.
Schroer's counsel, Sharon M. McGowan of the ACLU, argues that admissions by the supervisor, statements and actions of the colleagues the supervisor consulted about whether to rescind the job offer, and e-mails and documents created at the time of the decision present "direct evidence" of discriminatory intent.
Despite Robertson's earlier ruling on the sex stereotyping claim, District of Columbia U.S. Attorney Jeffrey Taylor, representing the library, contends, "First and foremost, transsexuals like [Schroer] are not a protected class under Title VII." Gender identity disorder, he adds, is not akin to a failure to conform to sex stereotypes, "nor does an allegation that a transsexual does not conform to sex stereotypes give rise to a cause of action under Title VII."
There was no discrimination, he said in the government's replies. The library rescinded the offer, he argues, because, among other concerns, Schroer would have to undergo a lengthy security check; might be unable to maintain high-level military intelligence contacts; and might not be viewed as credible by members of Congress.