By Jessica Christensen,
Legal Satyricon Employment Law Correspondent
Last month I reportedon the trial in Schroer v. Billington (Library of Congress), a case involving allegations that the federal government refused to hire a highly decorated former Airborne Ranger for a Terrorism Analyst position because she is transgendered.
Yesterday, U.S. District Court Judge Robertson issued his decision after trial, ruling that the government indeed did discriminate against Ms. Schroer. Judge Robertson held that three of the “legitimate business reasons” the government used to justify its actions were pretext for sex discrimination. Two other reasons – that Schroer would be unable to maintain her military contacts, and her credibility with those contacts, because those contacts would be prejudiced against her due to her gender transition – were held to be facially discriminatory:
Deference to the real or presumed biases of others is discrimination, no less than if an employer acts on behalf of his own prejudices. (source)
Judge Robertson also revised his previous summary judgment ruling regarding Schroer’s sex-stereotyping claim. In order to explain, a little background is required. In 1989, the U.S. Supreme Court, in what has become a seminal sex discrimination decision, ruled that employers could not discriminate against employees for failing to conform to traditional stereotypes of masculine and feminine. (See Price Waterhouse v. Hopkins, 490 U.S.228 (1989)). Following this decision, however, the district courts (except the sixth circuit) have also consistently held that transsexuality, in and of itself, is not protected under Title VII. In other words, while an employer is free to discriminate because someone is a transsexual, it cannot discriminate because the employee doesn’t seem feminine or masculine enough. You can see the dilemma this reasoning poses: it implies that a transsexual whose appearance “passes” is entitled to less protection, practically speaking, than a transsexual who is easier to detect.
Previously, Judge Robertson had ruled that Schroer could not make out a Price Waterhouse claim for sex discrimination based on sex-stereotyping based solely on her disclosure that she was making a gender-transition, unless she also presented evidence that the employer maintained sex-stereotypes that adversely affected one gender more than another. After considering all of the evidence presented at trial, Judge Robertson concluded that Schroer had indeed presented evidence that the government engaged in unlawful sex-stereotyping and that regardless of stereotypes, the government’s discrimination based on her transsexuality was unlawful sex discrimination:
The evidence establishes that the Library was enthusiastic about hiring David Schroer – until she disclosed her transsexuality. The Library revoked the offer when it learned that a man named David intended to become, legally, culturally, and physically, a woman named Diane. This was discrimination “because of . . . sex.” (source)
Thankfully, Judge Robertson got it right, and his decision marks a bold step forward in protecting the rights of transgendered people. The Department of Justice, which represented the Library of Congress in this case, has not disclosed whether or not it will appeal Judge Robertson’s decision.