Comments on: Transgender Discrimination Claim Against Library of Congress Fascinates

By: Jim Stroud 2.0 » Blog Archive » What if the guy you just hired wants to be a girl?

Tue, 26 Dec 2006 21:37:46 +0000

[...] READ: George’s Employment Blawg [...]

By: George Lenard

George Lenard — Wed, 26 Apr 2006 05:02:51 +0000

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.

By: Dr. Jillian Todd Weiss

Dr. Jillian Todd Weiss — Wed, 26 Apr 2006 01:00:50 +0000

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.”

By: George Lenard

George Lenard — Tue, 25 Apr 2006 23:03:57 +0000

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.

By: Dr. Jillian Todd Weiss

Dr. Jillian Todd Weiss — Tue, 25 Apr 2006 14:54:30 +0000

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