A D.C. district court has allowed a “transgender” federal employee to sue for sex discrimination under Title VII.
The court ruled there were issues requiring factual development, and therefore denied a motion to dismiss. This ruling does not ensure an ultimate victory for the plaintiff, but merely allows litigation to proceed.
The basic facts raised in the motion are quite interesting, as one might expect.
The plaintiff, represented by the American Civil Liberties Union’s Lesbian, Gay, Bisexual and Transgender Project, was a 25-year Army veteran and counter-terrorism expert when hired by the Library of Congress as a terrorism research analyst.
It would be an understatement to say that his/her résumé reflected a high degree of experience and expertise in counter-terrorism, including the fact that after 9/11 he/she directed a 120-person classified organization charged with tracking and targeting high-threat international terrorist organizations.
Biologically male, he/she dressed as a man for the interview. After accepting the job and negotiating the salary, he/she took the new boss to lunch and announced the fact he/she was starting the first phase of gender reassignment and would report to work as a woman (though still anatomically male).
The next day, he/she was informed he/she was “not a good fit,” and the job offer was rescinded.
Gay and transgender individuals claiming employment discrimination have had mixed success with sex discrimination claims based on a “sexual stereotyping” theory.
Courts have held that Title VII does not protect against discrimination based on sexual orientation or subjective gender identity as such (although some state and local laws do).
The “sexual stereotyping” theory attempts to avoid the impact of such rulings because it does not rest on the contention that the discrimination occurred because of hostility towards the individual’s sexual preference or subjective self-identification as male or female.
Rather, this theory contends the adverse employment action was based on hostility engendered by conduct or appearance inconsistent with cultural gender stereotypes. For example, hostility based on the perception that a male employee, gay or straight, had effeminate mannerisms. Such mannerisms would not have been objectionable in a woman. Ergo, the hostility is based on gender.
Oh, that things were so simple. As the judge in the Library of Congress case recognized, two lines of cases are in tension with this logical approach to treating all sex stereotyping as unlawful sex discrimination.
The first line of cases holds that Title VII does not prohibit discrimination based on sexual orientation or sexual preference; the second that it does not prohibit gender-specific dress and grooming codes, so long as they do not disparately impact or impose an unequal burden on one sex.
So under the first line of cases, taking adverse employment action against a man because he prefers to have sex with a man is not sex discrimination. This is true even though there is a commonsense argument that it is — the “but-for” argument that if everything else had been the same but he had been a woman (preferring to have sex with a man) no adverse action would have been taken.
The contrary argument, accepted by the courts today, is that discrimination based on sexual orientation is gender-neutral — it impacts homosexual men and women alike (so an employer who discriminated against lesbian women but not gay men would violate Title VII, but not an employer who discriminated against all homosexuals).
Under the second line of cases, evenhanded and evenly applied grooming codes may be enforced even where based on highly stereotypical notions of how men and women should appear. So it’s not sex discrimination to take adverse employment action against a man for wearing earrings or makeup — although this clearly is an issue of conformance with gender stereotypes and again would be gender discrimination under the“but-for” argument that if everything else had been the same but he had been a woman (wearing earrings or makeup) the adverse employment action would not have been taken.
Given these seeming inconsistencies in the law, the judge in the Library of Congress case was probably guilty of an understatement in saying:
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1) prohibits discrimination in employment “because of…sex.” Applying these three simple words in the context of transsexuals is decidedly “complex.”
Needlessly complex, perhaps, but as is often the case, judges must pick their way through a maze of existing precedent, making fine distinctions, and this judge did so with distinction, if not perfect logic, stating:
[Plaintiff] is not seeking acceptance as a man with feminine traits. She seeks to express her female identity, not as an effeminate male, but as a[n anatomically male] woman. She does not wish to go against the gender grain, but with it.
She has embraced the cultural mores dictating that “Diane” [his/her chosen female name; originally “David”] is a female name and that women wear feminine attire. The problem she faces is not because she does not conform to the Library’s stereotypes about how men and women should look and behave — she adopts those norms. Rather, her problems stem from the Library’s intolerance toward a person like her, whose gender identity does not match her anatomical sex.
Thus, according to the judge, the plaintiff did not have a gender-stereotyping claim, per se. But the judge concluded that there are facts he/she could prove which would support the claim that the refusal to hire was based solely on her sexual identity, and that in so doing, the Library discriminated against her ‘because of . . . sex.’”
Well, a couple of things. First, whatever your personal feelings about this — and mine are still a bit mixed, having been raised in the decidedly more homophobic ‘60’s and ‘70s — I think it’s clear that there’s an inevitable trend in the U.S. towards greater tolerance of all manner of variations in gender-and-sexually-related identities and conduct. This genie’s not going back in the bottle.
Second, there are powerful organizations devoting substantial resources to legal advocacy on all manner of gay, lesbian, bisexual, and transgender issues. Because of my first point, and the persistence of this effort, I expect there will inevitably continue to be legal change in favor of greater rights for gender-and-sexually diverse persons. And discriminatory actions such as engaged in here by the Library of Congress — even if lawful under current law — will risk becoming the subject of well-funded litigation.
Third, these characteristics of employees are irrelevant to performance, and discrimination based on them is therefore irrational and contrary to an organization’s best interests, whether or not it is lawful or subject to likely legal challenge. It certainly sounds like not hiring this individual, who had apparently achieved tremendous success while suffering the pain of gender dysphoria, was the Library of Congress’s loss.
Source — Gay.com: ”Judge OKs Library of Congress bias suit”
The case is: Schroer v. Billington, 2006 WL 845806 (D.D.C. March 31, 2006).
Photo credit: Miss K via flickr
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Dear George: I think you might have needlessly complicated the issues here. The judge didn’t say the sexual stereotyping theory was wrong, but implied that its use in Schroer’s case was impossible because Schroer’s hadn’t actually started work and no stereotyping had a chance to come into operation.
That’s why the judge went back to to the failed “sexual identity” theory of Holloway and Ulane. This theory relies on the scientific validity of “gender identity disorder,” as found in the psychiatric manuals, and the surgical cure for the conflict between anatomy and opposite-sex neuro-psych identity as male or female. Surgery is the sine qua non here, and distinguishes “real” transsexuals from cross-dressing “transgenderists.” Many transgender advocates are very uncomfortable with this theory because it leaves out those who will not have sex reassignment surgery.
Personally, I think this issue is on its way to the Supreme Court in a decade or so.
You can read more on my blog, Transgender Workplace Diversity for HR and Diversity Professionals, at http://jweissdiary.blogspot.com
Dr. Jillian Todd Weiss
Thanks for the comment, Dr. Weiss. Your blog is indeed interesting, and I will blogroll it.
I’m not sure I needlessly complicated the issues. I think the courts have done so.
I suspect you would argue that the courts have needlessly complicated the issues by avoiding a seemingly simple, natural, and generous reading of “sex discrimination” that would protect anyone subjected to adverse employment action because their appearance or conduct is not the cultural “norm” for their biological gender — whether that be wearing makeup and jewelry, unusual name or clothing choices, or same-sex sexual preference.
You say: “The judge didn’t say the sexual stereotyping theory was wrong, but implied that its use in Schroer’s case was impossible because Schroer hadn’t actually started work and no stereotyping had a chance to come into operation.”
I don’t read it that way. It was obvious and undisputed that the reversal of the hiring decision occurred because of the stereotyped view that men shouldn’t decide they want to adopt female names and present themselves as women. There was no need for Schroer to start work to establish this.
The judge said: “Protection against sex stereotyping is different, not in degree, but in kind, from protecting men, whether effeminate or not, who seek to present themselves as women, or women, whether masculine or not, who present themselves as men.”
I read this as a blanket rejection of the application of the application of sexual stereotyping theory to the transgendered, and can think of no other way to read it. (Of course the judge didn’t reject sexual stereotyping in other contexts, and I didn’t mean to imply that.)
Perhaps we don’t really disagree. It is hard to tell from an exchange of written comments, and no doubt you have studied this issue more than I.
Here’s the difference in what we’re saying. You’re saying that the reversal of the hiring decision occurred because of the stereotyped view that men shouldn’t decide they want to adopt female names and present themselves as women. But the court specifically disavows that it is using the sexual stereotyping claim, and says that it
is using a sexual identity claim because the employer did not express any stereotypical notions. Here is the quote from page 16 of the slip opinion:
“A transsexual plaintiff might successfully state a Price Waterhouse-type claim if the claim is that he or she has been discriminated against because of a failure to act or appear masculine or feminine enough for an employer, but such a claim must actually arise from the employee’s appearance or conduct and the employer’s
stereotypical perceptions. Such a claim is not stated here, where the complaint alleges that Schroer’s non-selection was the
direct result of her disclosure of her gender dysphoria and of her intention to begin presenting herself as a woman, or her
display of photographs of herself in feminine attire, or both.”
And a claim challenging an employer’s adverse action that is based on dislike of photographs of a biological male in feminine attire does NOT amount to a claim that the male does not appear masculine enough for the employer, actually arising from the employee’s appearance or conduct and the employer’s stereotypical perceptions?
I understand the court said what you quote. But I find it nonsensical and internally inconsistent.
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I have zero experience with this type of scenario and am very curious as to how it willall work out. I added a link to it from my blg today. I imagine that the commentary should prove quite interesting.