New Twist Keeps Transsexual's Bias Case Alive
A Washington, D.C., judge has deviated from the
"narrow view of sex" and ruled that a transsexual may be able to sue
the Library of Congress for refusing to
hire her "solely because of her sexual identity."
In trying to solve the "complex" problem of whether federal
discrimination law applies to transsexuals, U.S. District
Judge James Robertson relied on a 1983
decision which said "sex is not a cut-and-dried matter of
chromosomes."
While Diane Schroer (formerly David
Schroer) does not have a Title VII claim based on "sex
stereotyping," Robertson said, the Library of Congress may still
have discriminated against her "because of ... sex" if it would not
employ her because her "gender identity does not match her
anatomical sex."
"[T]he failure of numerous attempts to broaden Title VII to cover
sexual orientation says nothing about Title VII’s
relationship to sexual identity," he observed in an
order denying a motion to dismiss.
The Library of Congress offered Schroer a job as a terrorism
research analyst when she was still presenting herself as a man. But
after she told a recruiter that, as part of her treatment for
"gender dysphoria," she would be starting to live as a woman, it
withdrew the offer.
In cases involving transsexual plaintiffs, some courts have followed
the lead of the 7th U.S. Circuit Court of
Appeals in Ulane v. Eastern Airlines, 742 F.2d 1081
(1984), which held that Congress only intended Title VII to cover
the claims of biological males and females.
More recently, however, the 6th Circuit has found that transsexuals
can state a claim under Price Waterhouse v. Hopkins, 490 U.S.
228 (1989), in which the U.S. Supreme Court barred discrimination
based on a failure to conform behavior to sex stereotypes.
In Schroer v. Billington, Robertson rejected the plaintiff's
Price Waterhouse claim, noting that she
seeks to express her female identity, not as an effeminate male, but as a woman. She does not wish to go against the gender grain, but with it.
But more radically,
he also suggested the "narrow, traditional interpretation" of gender
is out of date and that the trial judge in Ulane,
John F. Grady, got it right back in
1983 -- even though the 7th Circuit reversed that decision.
"[I]t 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,'"
Robertson said.
The 10th Circuit is now reviewing the dismissal of a transsexual's
Title VII claims in
Etsitty v. Utah Transit Authority. With the diversity of
lower court views (see
table), it may soon be time for the Supreme Court to
address the issue.
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Also On Transsexual Bias Cases |
4/2/06