Annual Update 2009 - Transgender

July 17, 2009

Transitioning on the Job Protected by Title VII by Paul Cates Diane Schroer
Diane Schroer testifies before Congress.

After retiring from the military, Special Forces veteran Diane Schroer applied for a job as a terrorism researcher with the Library of Congress. She was looking for a position that would take advantage of the experience she gained in her 25-year military career where she completed over 450 parachute jumps into some of the most dangerous places on earth in the fight against terrorism. After 9/11, she was hand picked to lead a classified national security operation.

Just beginning the transition process and still living as a man at the time, Diane submitted her application as Dave. After being offered and accepting the job, Diane asked her future boss out to lunch to explain that she was starting to transition from male to female and felt that it would be best for everyone if she started work as a female. The next day, Diane’s future boss called to say that, after a “sleepless night,” she had decided to rescind the offer. As soon as it became clear that Dave was about to become Diane, the Library of Congress willingly cast aside Diane’s 25-years of experience fighting terrorism in favor of a less qualified candidate. (This may explain why we’ve made so little headway in the war on terrorism.)

As Diane has said, at first she was disappointed, but then she got angry. She had, after all, spent her entire life serving our country and was merely asking to be judged on her qualifications. Never one to give up without a fight, she contacted the ACLU, which filed a Title VII sex discrimination case on her behalf in federal court in DC.

Pull QuoteThe government never disputed the fact that Diane was offered and then refused the job after she came out as transgender. It claimed that it was perfectly legal to fire Diane for being transgender because there is no civil rights law protecting against transgender discrimination. It also came up with several other excuses to justify its actions. It claimed, because Diane is transgender, it would take too long for her to get the necessary security clearance to do the job. It claimed that her former military and counterterrorism contacts wouldn’t respect a transgender person, and therefore, she wouldn’t be able to do the job. And perhaps most offensive of all, it claimed that because Diane was in the Special Forces, which only allows men to serve, members of Congress would know she is transgender and therefore wouldn’t take her seriously.

Even before the trial began last August, that turned out to be a rather disingenuous argument when Diane was invited by House Education and Labor Committee’s Subcommittee on Health, Employment, Labor and Pension to testify about transgender discrimination. On June 26, 2008, Diane became one of the first transgender people to testify before Congress, testifying about the discrimination she faced by the Library of Congress.

At trial before Judge James Robertson, LGBT Project lawyers presented a number of experts. They had to disprove the faulty excuses raised by the government and had to prove that laws barring sex discrimination also include gender identity discrimination.

Even during the trial, it became pretty clear from Judge Robertson’s comments that he wasn’t buying the government’s flimsy excuses about why they changed their minds and refused to give Diane the job. He urged the lawyers to focus instead on the question of whether or not gender identity discrimination should be considered sex discrimination.

Ultimately, the court ruled that the Library was guilty of sex discrimination against Diane. In a decision that is sure to give employment lawyers everywhere pause when advising their clients about potential liability, the court compares the discrimination faced by Schroer to religious based 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.”

Diane Schroer
Diane Schroer, whose job offer was rescinded after she told her new boss she was transitioning.
What’s so great about this is that the court extends sex discrimination protections to people who are transitioning, which is when transgender people are probably most vulnerable in the workplace. But Judge Robertson didn’t stop there. He also said that the Library of Congress was guilty of sex stereotyping, that the Library discriminated against Diane for failing to live up to traditional notions of what is male or female. In other words, the court said that anyone, including a transgender person, who is perceived as gender non-conforming and experiences discrimination because of that gender non-conformity is protected under Title VII.

It’s too soon to gauge exactly how powerful this decision will be in ending transgender discrimination. It has already sent a loud and clear message to HR managers everywhere that companies can be sued and found liable for discriminating against transgender workers. While it isn’t binding on other courts, it is a well reasoned decision by a respected Judge that will undoubtedly be respected by other courts, including other state courts considering whether or not to apply state sex discrimination laws to transgender people.

But as Congress is already well aware through the testimony of Diane and other transgender people, transgender discrimination is a real problem in the workplace, and the best way to end that discrimination is to pass a federal law prohibiting discrimination based on sexual orientation and gender identity.

Of course it’s hard to overlook the way things played when leadership in the House decided to eliminate gender identity from the Employment Non Discrimination Act (ENDA ), before it passed last year. But a lot has changed since that vote and hopefully we’ve learned a few hard fought lessons. We also know that we are now dealing with a President who, unlike his predecessor who vowed to veto the bill, has pledged his support for civil rights legislation protecting against sexual orientation and gender identity discrimination.

Meanwhile, we will continue our advocacy for transgender equality on all fronts—in the courts, in Congress and in statehouses across the nation and in the court of public opinion.
 

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