For the first time in the history of Title VII, the federal law that prohibits discrimination on the basis of sex, a federal trial court has ruled that a woman-born-man, Diane Schroer, can recover for discrimination, because discrimination against a man transitioning to being a woman is discrimination "based on . . . sex." (Previoiusly, transgendered persons have had some avenues of recovery under the Price-Waterhouse line of cases, most of which involved cisgendered persons who failed to meet stereotyped expectations regarding gender presentation, i.e., attire, makeup, gestures, hair length, etc.)
Congratulations, Ms. Schroer!
Ms. Schroer (or perhaps I should call her Col., because that was the rank she retired at) applied for a position as a terrorism analyst with the Library of Congress. As part of this position, she would be called to testify before congress and brief members of the government. At the time she interviewed for the position, Ms. Schroer, a recent retiree from the U.S. Army following 25 years of service, was still presenting as male and using her birth name of David Schroer. Col. Schroer received the best interview score out of all of the candidates who were interviewed, and the hiring board unanimously recommended her for the position, impressed by her contacts, creativity, connections within the military and defense community, special operations experience, and experience briefing persons such as the Vice President, Secretary of Defense, and Chairman of the Joint Chiefs of Staff on counterterrorism matters.
Ms. Schroer was offered the position, and accepted. Before her hiring paperwork was finished, she met with the woman responsible for making the hiring decision, and explained her gender dysphoria and the fact that she would be transitioning, receiving facial feminization surgery before her start date, and presenting herself as a woman on the first day of work. She offered to answer any questions, provided contact information for her psychiatrist, and showed pictures of herself attired in professional feminine attire to reassure those hiring her that she would appear professional and appropriate at work.
The offer was rescinded, based on five concerns. 1) Ms. Schroer's transition would harm her military contacts, who would be unaccepting of the transition (Ms. Schroer was never asked about "the continuing viability of her contacts"); 2) Ms. Schroer would be an unpersuasive witness before congress because her experience (which would be explained to congress prior to testimony) would make it clear that she had served in the military while male, since special forces is not open to women; 3) Ms. Preece (the hiring authority) claimed that Ms. Schroer had been untrustworty because she did not tell the library of her plans to transition during her interview; 4) Ms. Schroer's transition might distract her from her job; and 5) Ms. Schroer would need to obtain an entirely new security clearance by virtue of transitioning.
Following a bench trial, which is a trial where the judge, not a jury, decides the case, the court ruled that Ms. Schroer had been discriminated against in violation of Title VII of the Civil Rights Act of 1964. The court reached this ruling based on two separate arguments. First, that Ms. Schroer was being discriminated against basesd on failure to conform to sterotypical gender roles. The court noted that discrimination based on sex stereotypes, under the Price-Waterhouse line of cases, was particularly difficult in cases involving transexuals because it was hard to separate when sex stereotypes were the cause of the discrimination, and when transexualism itself was the cause of the discrimination, particularly because being a transexual is not protected under Title VII according to existing law in every federal court that has considered the question. Interestingly, the court nevertheless found sex stereotyping, although it left it open as to what type of stereotyping occured, stating "I do not think that it matters for purposes
of Title VII liability whether the Library withdrew its offer of employment because it perceived Schroer to be an insufficiently masculine man, an insufficiently feminine woman, or an inherently gender-nonconforming transsexual." Slip. op. at 28. Second, it ruled that discriminating against a person on the basis that they were once a man, and thus a desireable employee, but now a woman, and therefor undesireable as a result, was quintessential discrimination based on sex. It stated, by way of analogy, that a person who held no animus against Christians or Jews, but who disliked converts, and fired an employee for converting from one religion to another, was discriminating based on religion.
This second ruling is entirely novel, and I think, a positive step, although I would love to hear from those with different opinions. I see it as a profound statement of support for transgendered persons, making it clear that the respect due to a man-born-man (in this case) is every bit as much due to her when she claims her identity as a woman.
If you would like to read the opinion, check out this link , and scroll down 9/19/2008, Schroer v. Billings, Doc. 70. You can also check out this CNN story , although I think it has some problematic language.
And here is a youtube clip of Ms. Schroer herself , talking about her case and her life.
Rock on, sister. And thank you for fighting the good fight!
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I would definitely agree that this is a landmark ruling, and would like to point out the aptness of the religious convert comparison used in the decision.
Conversion is a personal decision made for reasons of faith, and faith is something that no one can force on anyone else, nor can anyone ever truly know the measure of another's faith. That knowledge can only come from within.
If gender identification is parallel to faith, then it also must come from within and is truly known only to the individual. That kind of thinking in the legal system is a big step forward.
Congrats to Ms. Shroer. I wish more people could stand up to employers forcing the gender binary down our throats. Has anyone seen the new View feature where they are forcing Whoopi Goldeberg to wear skirts all weak, despite the fact that she feels like she can't move efficiently in them? Yeah, I wish she'd take a page out of Shroer's book and tell her employers to fuck themselves! Being a woman is a personal self-identification and choice. No one should be telling us what a woman is meant to look like or be like, especially our workplaces.
The court ruling is right - our gender identity is personal choice and a private matter,like or relgion, and who the fuck cares if your boss likes your particular God or your particular beliefs regarding gender? It's never his business and he should know that....
If you are interested in the View's offensive feature regarding Whoopi Goldberg wearing dresses, I wrote about it here: http://thebroadspot.blogspot.com/2008/09/fashion.html
woohooooooooo
This makes me so happy.
Just a tiny note, as a transgender person myself, the "ed" at the end of transgender isn't really needed, and most trans-rights groups are trying to push for simply saying "transgender" instead of "transgendered" (since, in grammatical english terms, transgendered is saying we were 'once transgender' but not anymore.)
I may be silly and anal pointing it out, and if so I apologise, but I just felt I should.
Dani,
Thank you, I will remember that for future posts. (Unfortunately I cannot edit this one.) Sorry for getting that wrong!
Nakedcat and Sarah S,
I wasn't sure what to make of the religion comparison. It certainly isn't a bad thing, in terms of comparing it to another concrete right, but I wonder how strong the analogy is. Is transitioning (or being transgender, for that matter) a choice like changing religions is? Does 'choice' language allow people to treat the decision to transition as 'just a choice' just like some claim that LGB people 'choose' same sex partners as opposed to being sexually oriented towards people of the same sex? (E.g., the ex-gay movement and all?) Although, on that note, one gay activist who I met insisted that acting on same-sex attraction is certainly a choice, because he claimed anything else reduced LGB people to mindless sexbots who couldn't help but have sex with people who were attractive to them, and that is demeaning. Hmmm, maybe I should have put this in the original post. :)
-Iz
Thanks Iz :)
And about the comment, I think it is a definite choice to transition, and if so, how far. For some it is literally a life or death (suicide) situation. Others it can be like "eh, I'm apathetic about my breasts[in regards to FTMs, and it's not to say breasts are bad.]"
However, I think it's a bit unnatural to deny the feelings (I refuse to use the term urges, because it makes us all sound like sexbots). I highly doubt in a professional setting a gay male or lesbian female will be flaunting out their sex life, so why should the person's choice to go ahead and transition affect the workplace either? I don't think the person would be going around "OMG LOOK AT THIS BRA I BOUGHT! TEEHEE!" or something.
Keep posting Iz!