Every once in a while we win one: a summary of Schroer v Library of Congress

(10 pm. – promoted by ek hornbeck)

I was minding my own business, cooling my heels in Friday Philosophy, hoping for a little more than the usually suspects to show up.  From the activity at 6pm eastern on a Friday, one might suspect that people had actual lives or something.

Anyhoo, jessical dropped by at 8:20 by the time stamp, which is probably something like 8:45 in real time.  So not only had most of the likely readers left by then, thereby missing what jessica left, but most of the unlikely readers no doubt missed it as well.  It’s not like there has been a big Huzzah about it or anything.

Well, except for maybe jessica and me and a batch of other transfolk.

jessica dropped of a link to the text of a decision by the US District Court for the District of Columbia in the case of Schroer v. the Library of Congress.

NL dropped by and left a link to an ACLU announcement.

There was the obligatory article in the Washington Post, from their man on the District Court beat, which appears on B10 the day after the ruling of that court.

I’ve spent a couple of days searching for someone to write the story and explain how this is important to transsexual people, mostly because when news like this comes from me or someone like me, it is too easy to downplay the significance.

Whatever.  Doesn’t seem like this news has a chance of surfacing amidst the roiling seas of financial profligacy.

So, as short and sweet as I can make it [turns out, that didn’t happen – ed], from my own biased point of view, here’s the deal.

Diane Schroer was offered a job at the Library of Congress as Specialist in Terrorism and International Crime with the Congressional Research Service (CRS) at the Library of Congress.  She had more than sufficient credentials for the position.  But there was a collision imminent in the near future.  During the application, evaluation and interview portions of the process, Ms. Schroer was beginning treatment for gender identity disorder.

When they flew Ms. Schroer in for finalizing of documents and to introduce her around to the people she would be working with (so she essentially had been hired), she disclosed over lunch to the official in charge of the selection process that she would be starting transition when she started work.

All hell broke loose, as they say.  The job offer was withdrawn because the selecting official didn’t want to hire “a man in a dress.”  It sounds pretty much like the usual scum rising to the top of the bucket.

The fatal lunch happened on December 20, 2004.  By December 21 the director of the LOC was opining that Ms. Schroer needed an examination to determine whether she was “psychologically fit for duty” and that she would (maybe should) surely lose her security clearance because of the sex change, the job offer was rescinded and offered to the second choice, who

“presented fewer complications” — because, unlike Schroer, he was not transitioning from male to female.

Ms. Schroer began transition in January, 2005.

One of the reasons I didn’t want to write this is that some of the reasoning described is so familiar to me that I want to scream.  The difference between me and Diane Schroer is that I already had my job…with tenure.  But in transitioning, the thought went, I automatically became unfit psychologically to perform my duties and the complications in the lives of others would be too much for them to bear.

Time to jump to the case.

Diane Schroer claims that she was denied employment by the Librarian of Congress (sic) because of sex, in violation of Title VII of the Civil Rights Act of 1964

Diane Schroer had the temerity to believe that sex discrimination against transsexual people can and does happen, contrary to the popular belief.

The judge (Bless you, James Robertson) agreed with Ms. Schroer, ruling that she was indeed discriminated against “because of…sex.”  It was ruled that she was not hired based on fears of what might happen rather than anything that had or was happening, except for the part about her losing credibility (which in my opinion was already obviously happening…and were “facially discriminatory as a matter of law”.

Deference to the real or presumed biases of others is discrimination, no less than if an employer acts on behalf of his own prejudices.

I was happy to see that Ms. Schroer used the approach I had planned in case I was terminated.  I thought it was a winner.  Here’s a quote:

Schroer contends that the Library’s decision not to hire her is sex discrimination banned by Title VII, advancing two legal theories.  The first is unlawful discrimination based on her failure to conform with sex stereotypes.  The second is that discrimination on the basis of gender identity is literally discrimination “because of . . . sex.”

Following a slew of rulings about discriminating people based on how distant they are in the performance of  the gender roles someone else has assigned (especially Price Waterhouse v. Hopkins and the 6th Circuit in Smith v. Salem), the judge ruled that

federal courts have concluded that punishing employees for failure to conform to sex stereotypes is actionable sex discrimination under Title VII.

I was especially moved when the judge admitted that he was initially inclined to rule in favor of the Library but had his perspective altered by the facts of the case.

What makes Schroer’s sex stereotyping theory difficult is that, when the plaintiff is transsexual, direct evidence of discrimination based on sex stereotypes may look a great deal like discrimination based on transsexuality itself, a characteristic that, in and of itself, nearly all federal courts have said is unprotected by Title VII.

The last portion is where it gets really interesting (well, as interesting as it can get…it is after all a legal paper).

Schroer’s second legal theory is that, because gender identity is a component of sex, discrimination on the basis of gender identity is 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.”

The Library’s claim that because Congress had twice failed to pass ENDA was ruled not relevant.  Rulings by the 7th, 9th and 10th Circuits that sex discrimination can only happen “against women because they are women and against men because they are men,” wherein they attempted to divine the “manifest purpose” of Congress, ran afoul of opinions by Scalia (Zuni Pub. Sch. Dist. No. 89 v. Dep’t of Education). and Kennedy (Public Citizen v. the United States Dep’t of Justice).

In other words, the following legal reasoning is found to be no longer tenable:

that a thing may be within the letter of the statute and yet not within the statute, because not within its spirit, nor within the intention of its makers

Hehe.  Scalia is quoted speaking against that reasoning (Oncale v. Sundowner Offshore Service, Inc). 🙂

I’ll let Judge Robertson state the conclusion:

In refusing to hire Diane Schroer because her appearance and background did not comport with the decisionmaker’s sex stereotypes about how men and women should act and appear, and in response to Schroer’s decision to transition, legally, culturally, and physically, from male to female, the Library of Congress violated Title VII’s prohibition on sex discrimination.

The Clerk is directed to set a conference to discuss and schedule the remedial phase of this case.

My take?  Title VII was intended to apply to all of us people.  It has been ruled that it also applies to transfolk.  We are now, above all, people once again.

I’d like to put into words how I real feel about this.  But that will no doubt take more time than a day and a half.  So maybe I an just drag a couple of comments in here from along the way:

From jessica:

But maybe…maybe…it’s not all for shit, y’know?  Maybe the parts that aren’t kind, that suck, the cruelty and stupidity and taking it on the chin…maybe the last 15 years have been for something.  And maybe not…but I found myself, really unexpectedly, deeply moved as I read the closing portions of the opinion.  It is damn near unprecedented, and it was very clear that it is cultural changes — the sort we bring about by simply existing — which made this possible, for the letter of the law is unchanged, for now.

I don’t know that I can add to that.  There has been a point to pushing on.  And that point has been to make it somewhat easier for someone else, someone like Ms. Schroer.  And her push forward will hopefully help so many others among us.

Now if we could only get the people to understand what that law says and act accordingly.

And I am still of the belief that those of you who think that accuse people you don’t like of being transgendered are standing in our pathway towards full equality.

But it is a major victory…at least until someone tries to appeal it, someone who thinks we deserve to be the grist of stories of horror, perversion, or the very disrespectful humor, someone who thinks we should once again be excluded from We the People.

For at least a brief few days, there is respite.