Trans Paradigm Shift Under Title VII?

U.S. District Judge James Robertson, denying a motion to dismiss in _Schroer v. Billington_, Civil Action No. 05-1090 (D.D.C., March 31, 2006), has suggested that courts should consider treating anti-transsexual discrimination directly as "sex discrimination" under Title VII of the Civil Rights Act of 1964, without invoking the "sexual stereotyping" theory recognized by the Supreme Court in _Price Waterhouse v. Hopkins_, 490 U.S. 228 (1989).

Two panels of the 6^th Circuit and a federal district court in Pennsylvania have ruled over the past year that transsexual plaintiffs had standing to assert discrimination claims under Title VII because by definition a transgender person is "gender non-conforming." These rulings were following the lead of decisions by the 9^th and 1^st Circuits in casing arising under other sex discrimination statutes. Judge Robertson was a bit skeptical about such analysis, finding it inconsistent with some recent sex stereotyping decisions by federal courts in non-transsexual cases.

Robertson was ruling in a discrimination case brought by the ACLU on behalf of Diane Schroer, who had been offered and accepted a researcher position at the Library of Congress. When Schroer decided it would be prudent to reveal that she was about to begin transitioning from male to female and would be showing up to work attired and groomed as a woman, the management official who had hired her withdrew the offer, and she was subsequently notified that the position had been filled with a different applicant. The defendants in this case do not deny that Schroer was denied employment specifically because of her gender dysphoria and her intention to cure that condition by transitioning to a physical female identity to match her gender identity.

Schroer is extraordinarily well-qualified for the job in question, terrorism research analyst with the Congressional Research Service, a division of the Library. She is a 25-year military veteran, having served in "numerous critical command and staff positions in the Armored Cavalry, Airborne, Special Forces and Special Operations Units, and in combat operations in Panama, Haiti, and Rwanda." She is highly educated, with relevant advanced degrees, and spend the last portion of her military career with the U.S. Special Operations Command, an outfit specifically charged with planning and executing special operations against terrorists. After the 9/11/2001 terrorist attacks against the U.S., she was appointed director of a special classified organization to track and target "high-threat international terrorist organizations," and in that position she was analyzing "highly sensitive intelligence reports" and briefing top security officials. After military retirement, she began working for a private consulting firm. When she applied (as a man) for the Library of Congress position, she was treated as a prize candidate and considered most highly qualified for the position that she was quickly offered.

In other words, Diane Schroer is the perfect candidate to discredit stereotypes about transgender people and to show the utter irrelevance of gender identity to the highly demanding employment qualifications for the job in question. Yet, the defendants, conceding their discriminatory decision, alleged that it is not actionable under Title VII of the Civil Rights Act as sex discrimination.

Robertson’s opinion contains a thoughtful review of the developing law under Title VII with respect to sex stereotyping and transgender people, showing how the decision in _Price Waterhouse_ has been seized upon by some of the lower federal courts as the starting point for developing a complex jurisprudence of gender non-conformity, under which some courts have extended protection to men subjected to hostile environments at work and others have more specifically found protection for transgender plaintiffs. But Robertson found this approach to the transgender issue unsatisfactory, instead being much more impressed by the opinion by U.S. District Judge John F. Grady, Jr., reversed by the 7^th Circuit in _Ulane v. Eastern Airlines, Inc._, 742 F.2d 1081 (1984), and subsequently denied certiorari by the Supreme Court. _Ulane_ predates _Price Waterhouse_. In finding that Karen Ulane, a male-to-female transgender person, could state a discrimination claim under Title VII, Grady concluded that the term "sex" in Title VII should be broadly construed to include a transgender discrimination claim, commenting that sex was about more than just chromosomes, a view that has been achieving increasing acceptance among some federal courts judges in recent years.

"Schroer is not seeking acceptance as a man with feminine traits," Robertson wrote, beginning his explanation of why the gender non-conformity cases do not present a doctrinally convincing basis for allowing transgender discrimination suits under Title VII. "She seeks to express her female identity, not as an effeminate male, but as a woman. She does not with to go against the gender grain, but with it. She has embraced the cultural mores dictating that ‘Diane’ 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."

However, Robertson concluded, Schroer could seek protection under Title VII more directly. Robertson noted that the 7^th Circuit had relied on two arguments in rejecting Judge Grady’s ruling in _Ulane_. First was a total lack of legislative history explaining what Congress intended when the pending civil rights bill was amended in 1964 to add "sex," from which the 7^th Circuit concluded that only a traditional, narrow definition of sex was meant. And, the court pointed to the numerous attempts that had been unsuccessfully made since the early 1970s to amend Title VII to add "sexual orientation."

While conceding that at the time those arguments might have been convincing, they were convincing no longer due to subsequent developments in the law. Mainly at the prodding of Supreme Court Judge Antonin Scalia, legislative history of federal statutes has lost its earlier weight as an interpretive guide, and there is much more emphasis directly on statutory language. For example, in _Oncale v. Sundowner Offshore Services, Inc._, 523 U.S. 75 (1998), where the 5^th Circuit had rejected a same-sex harassment claim on the reasoning that Congress had put "sex" into Title VII to protect women from discrimination at the hands of men and not to address male-on-male harassment, the Supreme Court, per Scalia, reversed, stating: "Male-on-male sexual harassment in the workplace was assuredly not the principal evil Congress was concerned with when it enacted Title VII. But statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed."

On the other point, Robertson observed that the failure of Congress to include sexual orientation in Title VII was irrelevant to the question of transsexuality, a separate phenomenon. Indeed, to date no member of Congress has seen fit to advance a legislative proposal to amend Title VII to add "gender identity or expression," or to adopt a separate statute addressing such discrimination. Thus, rather than a history of rejecting coverage for people like Diane Schroer, Congress has just not considered the matter at all.

"Without good reasons to oppose it, and with numerous courts now joining its conclusion – albeit under the _Price Waterhouse framework_ – it may be time to revisit Judge Grady’s conclusion in _Ulane I_ that discrimination against transsexuals _because they are transsexuals_ is ‘literally’ discrimination ‘because of sex.’ That approach strikes me as a straightforward way to deal with the factual complexities that underlie human sexual identity. These complexities stem from real variations in how the different components of biological sexuality – chromosomal, gonadal, hormonal, and neurological – interact with each other, and it turn, with social, psychological, and legal conceptions of gender."

But Robertson felt that deciding such questions in a pretrial motion to dismiss, without a full hearing and factual record, would not be appropriate. Thus, the motion to dismiss for failure to state a claim was denied, and Robertson directed the clerk to "set a status conference, for the purpose of discussing and scheduling the next steps in this case."

Comments

[Carolyn]

Wow, it that all really complicated! I am transsexual myself and simply want to live and be treated as a woman. Nothing difficult about that, I hope.