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Transsexual bias ruling may evoke more lawsuits

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WASHINGTON—Transsexuals will find it easier to successfully sue their employers if a federal district court judge's ruling in an employment discrimination lawsuit brought by a transsexual is ultimately upheld, say observers.

In his March 31 ruling in Diane J. Schroer vs. James H. Billington, Librarian of Congress, Judge James Robertson of the U.S. District Court for the District of Columbia said discrimination against transsexuals may violate Title VII of the Civil Rights Act of 1964's proscription of discrimination because of gender.

Other recent court cases that have held in favor of transsexuals have done so on the basis that they were the victims of gender stereotyping, which is harder to prove, observers say.

According to the decision, Diane J. Schroer, who was previously known as David J. Schroer, was diagnosed with gender dysphoria, a condition in which a person's sexual identity does not match anatomical gender.

In 2004, she applied for a position as a terrorism research analyst with the Congressional Research Service of the Library of Congress. "She was highly qualified for the position," says the ruling. A 25-year armed forces veteran, her positions had included serving as post-9/11 director of a 120-person classified organization charged with tracking and targeting high-threat international terrorist organizations.

Ms. Schroer attended the interview dressed in traditional masculine clothing. When she received the job offer, though, she informed the library that, as part of her treatment for gender dysphoria, she would begin presenting herself as a woman. Ms. Schroer was told the next day she would not be a "good fit," and the job offer was withdrawn.

In his decision, Judge Robertson noted that recent court decisions ruling in favor of transsexuals have done so on the grounds that "Title VII protects transsexuals who do not conform to their employer's gender stereotypes."

But Judge Robertson turned instead to a 1983 decision in Ulnae vs. Eastern Airlines Inc., in which a federal judge held that discrimination against transsexuals because they are transsexuals is "literally" discrimination because of sex under Title VII. That decision was subsequently overturned by the 7th U.S. Circuit Court of Appeals in Chicago.

"It may be time to revisit" the 1983 decision, said Judge Robertson, however. That decision's approach "strikes me as a straightforward way to deal with the factual complexities that underlie human sexual identity," he said. "These complexities stem from real variations in how the different components of biological sexuality-chromosomal, gonadal, hormonal and neurological-interact with each other and, in turn, with social, psychological and legal conceptions of gender."

Judge Robertson denied the library's motion to dismiss the case. "There are facts that Schroer could prove which would support her claim that the library refused to hire her solely because of her sexual identity" and in doing so discriminated against her because of sex, says the ruling. He called for a status conference as the next step in the litigation.

A Library of Congress spokes-woman had no comment.

Some observers say that if Judge Robertson's approach is ultimately upheld, it will make it easier for transsexuals to pursue employment discrimination cases against their employers.

Under Judge Robertson's approach, "you wouldn't have to say that someone was holding you up to stereotypical gender norms to make out a Title VII case. You can just say, 'Because I'm a transsexual, I was treated differently than people who are not transsexuals,"' said Paul M. Secunda, assistant law professor at the University of Mississippi Law School in University, Miss. "It broadens the theory and permits a larger group of transsexuals to recover under Title VII, potentially," Mr. Secunda said.

It would be "pretty significant" if the decision is ultimately upheld, said Arthur S. Leonard, a professor at New York Law School. Transsexuals "wouldn't have to prove any facts about stereotyping if they could show they were suffering discrimination because of their gender identity. That would be enough to have coverage under Title VII. It would certainly simplify the proof issues under the case," said Mr. Leonard.

"I don't think that employers necessarily discriminate against transsexuals because they fail to conform with stereotypes," he added. In many cases, they do so because they "think it's weird. They don't understand it. They think someone who has this gender identity is in some sense sick or unstable, or they worry about the image of their business" or about higher health care costs because of the hormones transsexuals take as part of their gender reassignment, he said.

James McDonald Jr., an employer attorney with Fisher & Phillips in Irvine, Calif., said, though, that while "this case uses a little different analysis," the "net result here is another case where a court has applied Title VII to transsexual plaintiffs."

What this means for employers is they "need to be aware that discrimination against people who are transsexuals may well be attacked as unlawful." One particular danger for employers lies "in asking too many questions of an employee applicant," said Mr. McDonald. "It's a very tough area for employers."

Diane J. Schroer, plaintiff, vs. James H. Billington, Librarian of Congress, defendant, U.S. District Court for the District of Columbia, Civil Action No. 05-1090 (JR).