Why A Federal District Court's Decision Is a Victory for Transsexuals' Right Not to Face Employment Discrimination

By JOANNA GROSSMAN
Tuesday, Sept. 30, 2008

In a thoughtful, well-reasoned opinion, a federal district judge handed transsexuals a significant victory against employment discrimination. The case was Schroer v. Billington, and the court was the federal district court for the District of Columbia.

The Case Against the Library of Congress

The facts of the case are these: Diane Schroer applied for a position as a terrorism specialist with the Congressional Research Service (CRS) at the Library of Congress. The job, which requires a security clearance, entails providing expert policy analysis to Congressional committees, as well as members of Congress and their staffs.

No one disputes that Schroer possessed excellent qualifications for the job, which included an impressive set of relevant academic credentials and twenty-five years of service in the military, including time in combat as part of a Special Forces unit. The dispute arose, instead, because of Schroer's male-to-female transsexual status. (A transsexual is someone whose gender identity diverges from his anatomical sex at birth.)

At the time she interviewed for the position, she had been diagnosed with gender identity disorder and had been working with a social worker to develop a plan to transition to a completely female identity. When she had interviewed at CRS, however, she used what was then her legal name, "David Schroer," and presented herself to the interviewer with a male appearance. After the interview, on which she scored higher than any other applicant, CRS offered her the position.

After receiving the offer, Schroer called Charlotte Preece, the staff member with whom she had interviewed, and asked her to lunch. At lunch, Diane disclosed her transsexual status and explained that, by the time she reported for work, she would have had feminizing facial surgery and would have assumed a permanent, full-time female appearance, to be followed by sexual-reassignment surgery at a later date.

After an initial response of "Why in the world would you want to do that?," Preece told Schroer, "Well, you've given me a lot to think about. I'll be in touch." When Preece did get back in touch, it was to rescind the job offer. She explained over the phone: "Well, after a long and sleepless night, based on our conversation yesterday, I've determined that you are not a good fit, not what we want." The job was then offered to and accepted by the next highest-scoring candidate on the list.

Transsexuals and Employment Discrimination: The Unfriendly Legal Landscape Prior to This Ruling

Transsexuals have generally been unsuccessful in establishing direct rights under federal anti-discrimination laws. Most courts have held that neither transsexuals nor gays and lesbians are a protected class under Title VII - the main federal anti-discrimination law -- which means that employers can base employment decisions on those characteristics without running afoul of federal law.

Efforts to enact federal legislation to protect transsexuals against both these forms of discrimination have been sustained, but thus far, unsuccessful. As I have discussed in a previous column, the House of Representatives last fall passed the Employment Non-Discrimination Act, which would have extended Title VII protection to gays and lesbians, but not transsexuals. An earlier bill had included both categories, but "gender identity" discrimination was dropped in a last-minute political compromise.

Although state anti-discrimination laws often operate as a supplement to Title VII, transsexuals do not find much protection at that level either. Although about a third of the states have now adopted laws banning sexual-orientation discrimination, only a handful of those extend the protection to discrimination on the basis of transsexualism or gender identity.

Finally, there are local ordinances that do protect transsexuals, but those are often quite limited in scope and application.

An Avenue for Legal Protection for Transsexuals: Using the Sex Discrimination Rubric

With such a dearth of formal protection, transsexual employees have had to draw on other theories to challenge the discrimination they suffer. (And studies suggest that at least half of transsexuals do experience some form of discrimination at work.) Title VII doctrine presents two possibilities for transsexuals to claim they have suffered illegal sex discrimination. First, transsexuals might argue that an employer has acted "because of sex" - and thus committed sex discrimination -- when it discriminates against an employee who converts from one sex to the other. Second, transsexuals might argue that the discrimination they suffer constitutes sex-stereotyping (and thus sex discrimination) to the extent that employers discriminate because transsexuals take on a gender that differs from their biological sex.

The court in Schroer examined (and, ultimately, validated) both of these theories. But let's first consider the prior rulings in transsexual discrimination cases.

Early Rulings Refused to Recognize Transsexuals' Rights, But A Watershed Supreme Court Decision Should Have Changed That

In the early cases, courts routinely rejected the argument that discrimination against transsexuals is a form of sex discrimination prohibited by Title VII, just as they had rejected the notion of transsexualism as a protected class under the statute. The U.S. Court of Appeals for the Seventh Circuit's 1984 ruling in Ulane v. Eastern Airlines was among the first such rulings, and set the tone for a pattern of exclusion of all transsexual claims under Title VII.

However, the legal landscape changed dramatically in 1989 -- perhaps more than federal courts have been willing to admit -- when the Supreme Court decided Price Waterhouse v. Hopkins, which took a very broad approach to defining sex discrimination.

In Price Waterhouse, the plaintiff was denied partnership in an accounting firm, at least in part because she was too aggressive, cursed like a truck driver, and did not walk, talk, or dress in a feminine manner. In short, she was a woman who acted like a man, and for that, she was dealt a career-stunting blow. The Court held in Price Waterhouse that Title VII forbids employers from discriminating against an employee for failing to live up to gender role expectations. You can't, in other words, punish a female employee for not being feminine enough. That sort of gender policing, the Court ruled, violates Title VII. In an oft-quoted line, the majority observed that: "[W]e are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associate with their group."

Even After Price Waterhouse, Transsexuals' Discrimination Cases Have Led to Mixed Results

Price Waterhouse should have been a watershed case for transsexuals. After all, gender non-conformity is the essential trait of transsexuals. Accordingly, refusing to allow employers to discriminate against transsexuals who dress and maintain an outward appearance that is inconsistent with their anatomical sex would seem to be a logical consequence of the Court's decision. If a female employee cannot be punished by an employer for not being "feminine enough," then certainly a man cannot be punished by an employer for not being "masculine enough." And perhaps the most dramatic way not to be "masculine enough" in an employer's eyes is to assume a female identity.

Despite the clarity of this argument, however, the post-Price Waterhouse results in transsexual discrimination cases have been mixed. Several courts have simply refused to apply the sex-stereotyping theory to transsexual plaintiffs, suggesting that their transsexual status deprives them of a "sex" altogether and thus dispenses with the usual protections against sex discrimination.

The tides have begun to turn, however, in favor of transsexual plaintiffs. A handful of state courts have interpreted state anti-discrimination laws to protect transsexuals against sex discrimination, most by using a Price Waterhouse-type theory. At the federal level, meanwhile, the U.S. Court of Appeals for the Sixth Circuit set the stage for a new era with its 2004 ruling in Smith v. City of East Salem.

In that case, a transsexual firefighter argued that he had suffered adverse employment actions and retaliation because of his gender identity disorder. Disagreeing with several other federal appellate courts that had faced the same question, the Sixth Court ruled that the plaintiff was discriminated against on the basis of his sex. The court in Smith relied on Price Waterhouse to hold that the plaintiff was protected by Title VII. Discriminating against a male who assumes a female identity, the court reasoned, is a form of gender policing as well: A "real" man wouldn't do this, so a man who does is singled out for maltreatment.

The Ruling in Schroer v. Billington and the Reasoning Behind It

That brings us up to the point of the case with which I began this column - Schroer v. Billington. There, CRS tried first to argue that it had a number of reasons for refusing to hire Schroer that were related to her transsexual status, but nonetheless non-discriminatory. They ostensibly had concerns about her ability to receive a timely security clearance, her trustworthiness, her ability to focus on work while undergoing such a significant life change, and, finally, a concern that she would be unlikely to benefit from the military contacts in her past after assuming a female identity.

Judge Robertson, who presided over Schroer's case, rejected all these explanations as either pretextual -- believing that CRS actually made its decision because of her newly disclosed transsexual status, and not these other concerns -- or themselves discriminatory. But did basing an employment decision on an applicant's transsexual status violate Title VII? CRS argued no, but the court ruled against it on two separate theories.

First, the court ruled that Schroer was a victim of illegal sex-stereotyping, though not in the usual way transsexuals might experience. Preece -- Schroer's interviewer who first selected, then rejected her -- did not seem to care that Schroer was a man taking on the appearance of a woman, something a "real" man would not do. Rather, when Preece saw pictures of Schroer with a female appearance, she admitted that her concern was that Schroer did not look feminine enough - that she instead looked like a man dressed as a woman. Preece thus seemed to accept the notion that Schroer's had changed her sex, but believed that Schroer, as a woman, was not living up to the expectations for her gender.

The court took the view that transsexuals are protected against sex-stereotyping - regardless of which way it runs ("too much" or "not enough")- just as other plaintiffs are. It cited both Price Waterhouse and the Sixth Circuit's ruling in Smith for the proposition that punishing gender non-conformity in the workplace violates Title VII. The court acknowledged that because gender non-conformity is the defining aspect of transsexualism, it may be that the anti-sex-stereotyping rule is the same as banning discrimination of transsexuals outright, but still adopted the rule.

Second, the court ruled that Schroer was a victim of sex discrimination, even apart from the stereotyping and gender policing. It took the position that CRS discriminated against Schroer because she was converting from one sex to the other - and that such a decision falls within Title VII's prohibition on employment decisions made "because of sex."

Here, the court paved genuine new ground. No federal court has ruled similarly on this issue. Yet, this court seems to have the better of the argument. Judge Robertson drew an analogy to religion: The court reasoned that if an employer discriminated against an employee because she converted from Christianity to Islam - and harbored bias only against "converts"--"that would be a clear case of discrimination 'because of religion'". So, too, the court concluded, should it be a clear case of discrimination when an employer singles out for adverse treatment an individual who converts from male to female. The court thus read Title VII literally to ban discrimination "because of sex" and swept this act of discrimination within its reach.

In this Landmark Ruling, Judge Robertson Chose the Right Path

The ruling in Schroer is a landmark one, both for the inclusive protection it offers transsexuals who experience employment discrimination and for the careful way in which the court grappled with a tough legal and social issue.

In doing so, the court honored the Price Waterhouse precedent in a way that other federal courts have not been willing to do, and struck a blow at the entrenched sex-stereotyping that harms not only transsexuals or gays and lesbians, but also all women. The law must be a tool to breakdown gender stereotypes - and Judge Robertson has moved it in the right direction.


Joanna Grossman, a FindLaw columnist, is a professor of law at Hofstra University and is currently a visiting professor of law at Vanderbilt University. Her columns on family law, trusts and estates, and discrimination, including sex discrimination and sexual harassment, may be found in the archive of her columns on this site.

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