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Terrorism expert’s court victory says ’64 Act protects gender expression

U.S. District Judge James Robertson issued a decision on March 31 calling for a new approach to transsexual discrimination claims under the federal Civil Rights Act of 1964. Refusing to dismiss Diane J. Schroer’s lawsuit against the Library of Congress for refusing to hire her for a terrorism research position, Robertson suggested that federal courts should interpret the statutory ban on sex discrimination to include discrimination based on gender identity.

Robertson’s opinion recognizes that a federal appeals court in Cincinnati, ruling on two different Ohio cases, as well as a recent federal trial court decision from Pennsylvania, have found protection for transsexuals under the statute, but those cases used a sex stereotyping theory that Robertson found unsuitable for Schroer’s case.

Born David John Schroer, Diane Schroer sensed at an early age that her gender identity was female, but for half a century suppressed those feelings, pursuing a career in the military. Schroer served for 25 years, holding “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,” according to the court’s opinion. Schroer graduated from the National War College and the Army Command and General Staff College, and has earned masters degrees in history and international relations.

Her last assignment in the military was with the U.S. Special Operations Command, directly involved in responding to international terrorism. In that capacity, Schroer directed “a 120-person classified organization charged with tracking and targeting high-threat international terrorist organizati­ons.” This job involved her in analyzing “highly sensitive intelligence reports,” planning operations, and briefing top officials, including Vice President Dick Cheney, Defense Secretary Donald Rumsfeld, and the Joint Chiefs of Staff.

After retiring from the military, Schroer joined a consulting firm, working with the National Guard on security issues, but felt a pull back to public service and responded to an invitation to interview with the Congressional Research Service for a key position in terrorism research under the auspices of the Library of Congress. Not surprisingly, given her record, she was the most qualified person and was offered and accepted the position. However, planning finally to transition from male-to-female gender expression, she thought it only proper to let her new employer know that when she reported for work, it would be as a woman.

Schroer explained this to the Congressional Research Service official with whom she had been dealing as a man, and the individual called her back the next day and said the offer was withdrawn on the grounds that Schroer would not be a “good fit” at the Congressional Research Service. The official, Charlotte Preece, said this was “for the good of the service,” and thanked Schroer for her honesty. Soon after, Schroer received a form e-mail indicating that the position for which she applied had been filled. Outraged, she filed a discrimination complaint with the Library of Congress Equal Employment Office, appealed their adverse ruling internally, and, represented by the LGBT Rights Project of the American Civil Liberties Union, then filed her lawsuit in federal court.

The government moved to dismiss the case, arguing that the Civil Rights Act does not prohibit discrimination against transsexuals, relying on a long string of federal appellate decisions, beginning in the 1980s, holding that the inclusion of “sex” as a prohibited ground of discrimination in the 1964 act did not incorporate gender identity or sexual orientation.

However, in the past year, courts in three federal cases have found that transsexuals may claim protection under the Civil Rights Act if they can show that sex stereotyping by the employer was the cause of discrimination. Both the 6th Circuit Court of Appeals, ruling on two cases from Ohio, and a federal trial court in Pennsylvania, following the same reasoning, have found that individuals who lost their jobs because of their gender identity had actually suffered sex discrimination because they failed to comply with gender stereotypes.

Robertson agreed with the result of those cases, but not necessarily the reasoning. The recent precedents were based on a 1988 Supreme Court case involving Ann Hopkins, a woman denied partnership at a major accounting firm, Price Waterhouse, because several partners felt that she did not fit their image of a “lady partner” due to her macho, aggressive manner and lack of feminine charm. The Supreme Court said that allowing such stereotyped thinking to affect a personnel decision was unlawful sex discrimination. Later courts have used that case to protect effeminate gay men from workplace harassment, as well as the handful of recent cases specifically protecting transsexuals.

But, Robertson found that Schroer’s case did not present this type of claim. Rather, he preferred to treat it as a straightforward sex discrimination claim, revisiting the reasoning of the trial judge in an early transsexual cases, Ulane v. Eastern Airline. District Judge John Grady had refused to dismiss the discrimination claim of a male-to-female transsexual airline pilot—like Schroer, a military veteran—finding that the term “sex” in the statute should be broadly interpreted to include “sexual identity.” Grady’s decision was overturned by the 7th Circuit Court of Appeals, but Roberts found that the grounds for that appellate ruling had become outmoded.

The 7th Circuit had emphasized that because the word “sex” was not defined in the statute, it should be given the meaning that legislators would have intended in 1964, and that Congress’ repeated rejection of a ban on sexual orientation discrimination proved its intention not to go beyond that original meaning. But Robertson noted that this method of statutory interpretation was not consistent with the Supreme Court’s 1998 ruling in a same-sex harassment case, in which Justice Antonin Scalia wrote that “statutory prohibitions often go beyond the principal evil [that Congress intended to address] 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.” Scalia is a strong proponent of ignoring legislative history and finding the meaning of a statute primarily by reference to the actual words used by the legislature, and his view is now followed by many federal judges.

Robertson argued that the repeated failures of proposed gay rights laws were irrelevant, since none of those proposals included gender identity, so Congress’s failure to approve them did not make any statement regarding the appropriate treatment of transsexual discrimination claims. As such, Robertson found convincing Judge Grady’s original ruling in Ulane that “discrimina­tion against transsexuals because they are transsexuals is ‘literally’ discrimination ‘because of sex’” and thus clearly covered by the Civil Rights Act.

Having rejected the government’s motion to dismiss the case, Robertson ordered the clerk of the court to set up a meeting with the parties to determine how to proceed with the case. If, as seems likely, the government appeals his ruling, there could be a delay in beginning the pre-trial discovery process while Robertson’s conclusions are considered by the court of appeals.

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Updated 5:17 pm, July 20, 2018
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