Ultimately, a District of Columbia judge did not need science to decide whether the Library of Congress discriminated against a job applicant because she planned to change her sex. In a landmark decision, he simply found that Title VII means what it says in prohibiting discrimination “because of ... sex.”

“Imagine that an employee is fired because she converts from Christianity to Judaism,” U.S. District Judge James Robertson reasoned. “Imagine too that her employer testifies that he harbors no bias toward either Christians or Jews but only 'converts.' That would be a clear case of discrimination 'because of religion.'”

The same logic, he concluded, means the Library of Congress violated Title VII by withdrawing a job offer to Diane Schroer “when it learned that a man named David [Schroer] intended to become, legally, culturally, and physically, a woman named Diane.”

“This was discrimination 'because of ... sex,'” Robertson said in a decision following a bench trial that makes Schroer, a former U.S. Army colonel, the first transsexual to win a sex discrimination case based on the theory that gender identity is a component of “sex.”

U.S. courts have previously 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.

Schroer tried to counter the Ulane line of cases by presenting scientific testimony that the term “sex” encompasses “gender identity” -- defined as a person's sense of being male or female. An expert for the Library of Congress testified conversely that “sex” refers to “chromosomal configuration” at birth.

Robertson -– who had earlier invited the parties to develop “[a] factual record ... that reflects the scientific basis of sexual identity in general, and gender [identity disorder] in particular” -- described the expert testimony as “impressive.” But he decided the case on the statutory, rather than scientific, definition of “sex.”

“The decisions holding that Title VII only prohibits discrimination against men because they are men, and discrimination against women because they are women, represent an elevation of 'judge-supposed legislative intent over clear statutory text,'” he said, quoting U.S. Supreme Court Justice Antonin Scalia.

Since Scalia is the strictest of judicial “textualists,” Robertson may have found a clever way of making his ruling attractive to conservatives on the D.C. Circuit Court of Appeals and, perhaps, even the Supreme Court.

Schroer also prevailed on her other theory of liability –- that the Library of Congress did not hire her as a terrorism research analyst “because her appearance and background did not comport with [its] sex stereotypes about how men and women should act and appear.” Robertson still has to decide how much, if anything, to award her in damages.

“It is especially gratifying that the court has ruled that discriminating against someone for transitioning [from one sex to another] is illegal,” Schroer, 52, said in an ACLU press release.

By Matthew Heller
9/21/08