<em>Schroer v. Library of Congress</em>: Frequently Asked Questions

The ACLU filed a lawsuit against the Library of Congress on behalf of Diane Schroer on June 2, 2005. After retiring from the military, Diane, who had been hand-picked to head up a classified national security operation while serving as an Airborne Ranger-qualified Special Forces Colonel, applied for a position with the Library of Congress as the senior terrorism research analyst. Soon thereafter, she was offered the job, which she accepted immediately. Prior to starting work, Diane took her future boss to lunch to explain that she was in the process of transitioning from male to female and thought it would be easier for everyone if she simply started work presenting as female. The following day, Diane received a call from her future boss rescinding the offer, telling her that she wasn’t a “good fit” for the Library of Congress.

The lawsuit charged that the Library of Congress unlawfully refused to hire Diane in violation of Title VII of the Civil Rights Act of 1964, which protects against sex discrimination in the workplace. The Library of Congress moved to dismiss the case several times, claiming that transgender people are not covered under Title VII. After a trial, a federal judge rejected those arguments on September 19, 2008, ruling that the Library illegally discriminated against Diane in violation of Title VII.

Click here for more information about the case, including the legal documents and the decision.

What did the court rule?

The court’s decision was significant for three reasons:

1. The court ruled that discriminating in employment against someone who is transitioning from one gender to another is sex discrimination under federal law. The court compared the discrimination faced by Diane to religious discrimination, saying, “Imagine that an employee is fired because she converts from Christianity to Judaism. Imagine too that her employer testified that he harbors no bias toward either Christians or Jews but only ‘converts.’ That would be a clear case of discrimination ‘because of religion.’ No court would take seriously the notion that ‘converts’ are not covered by the statute.”
2. Next, the court rejected the library’s argument that transgender people are not protected by Title VII’s ban on discrimination due to sex stereotyping, and found that there was clear evidence that the library’s decision not to hire Diane was due to its belief that she did not fit within traditional notions of what it means to be male or female.
3. The court made clear that refusing to hire a transgender person because of the presumed bias of other people is still impermissible sex discrimination. The library claimed in part that it was not biased against Diane because she is transgender, but that it assumed others would be biased against her, and withdrew the job offer because of how it believed others would react to her transition. Being able to testify credibly before Congress and having good contacts with current and former members of the military were both important qualifications for the job. The library said that it assumed that, as a transgender person, Diane could never garner the respect of Congress and would automatically lose the valuable contacts she developed in the military. The court rejected the library’s argument that this “justification” was permissible under the law. Instead, the court made clear that refusing to hire a transgender person because of the assumed bias of others is no less discriminatory than an employer’s refusal to hire a women or racial minorities because of the assumed bias of others.

What does this decision mean for other transgender people?

The decision is sure to serve as a wake-up call to other employers that they could be found liable for discriminating against transgender workers. In addition, it is an extremely well reasoned and well written decision by respected a United States District Judge. While other courts are not bound by this decision, it should be persuasive to other judges presented with the question of whether transgender people are protected by laws prohibiting sex discrimination.

Does this mean we don’t need a transgender-inclusive ENDA? (ENDA -- the Employment Non-Discrimination Act -- is a proposed federal civil rights law that would bar discrimination against lesbian, gay, and bisexual people in the workplace)

No. Congress needs to make it clear once and for all that it is illegal to discriminate against people because of their gender identity or expression. This is a persuasive decision from one judge that is likely to be followed by other courts but not all. There are some parts of the country where we know this decision is likely to have limited effect due to prior bad decisions on this subject. Therefore, the only way to ensure that all people are free from discrimination on the basis of gender identity or expression is for Congress to pass a trans-inclusive ENDA.

What effect does this decision have on state laws barring sex discrimination?

A number of states already bar transgender discrimination outright. Similarly, some state courts have ruled that transgender people are covered by their states’ laws barring sex discrimination. This decision should be helpful in persuading other state courts that transgender people are covered under laws barring discrimination based on sex.

Does this decision apply to the broader transgender community?

Yes, for two reasons. First, the court ruled that employers who discriminate against people because of their gender transition are violating the federal law against sex discrimination. The fact that Diane was beginning the “real life experience” at the time of the events in this case, and had not had any gender affirming surgeries, posed no difficulty for the court in reaching its conclusion that what happened to her was discrimination because of sex. Second, the court ruled that everyone – including transgender people – is protected from discrimination based on sex stereotypes. Therefore, anyone who is perceived as gender non-conforming and experiences discrimination because of that gender non-conformity is protected.

What happens next in the case?

The court’s decision established that the library illegally discriminated against Diane based on sex. Now the court must decide the appropriate remedy. The government does not have a right to appeal the decision until after the court decides what relief it will award to Diane. It is possible that the case could settle, in which case there will be no appeal. If the parties do not settle, then the government will eventually have the option of deciding whether or not to appeal.