Diane Schroer

The term “sex” refers to the biological reality of “chromosomal configuration” and not to “sexual identity,” government attorneys argue in a case that could reconfigure how courts apply federal discrimination law to transsexuals.

Diane Schroer, a male-to-female transsexual, sued the Library of Congress in 2005 for refusing to hire her as a terrorism research analyst “solely because of her sexual identity.” If sex is purely a matter of chromosomes, she would have no claim under Title VII of the Civil Rights Act, which requires a plaintiff to show discrimination “because of ... sex.”

In cases involving transsexual plaintiffs, many 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.

But U.S. District Judge James Robertson refused to dismiss Schroer's case last year, suggesting the “narrow, traditional interpretation” of gender is out of date and inviting the parties to develop

A factual record ... that reflects the scientific basis of sexual identity in general, and gender [identity disorder] in particular.

In a renewed motion to dismiss filed April 26, government attorneys said their expert witness, Dr. Chester W. Schmidt of Johns Hopkins University, had “identified the term 'sex' as a biologic reality which refers to the biologic status of a fetus or newborn with regard to their chromosomal configuration.”

“GID [gender identity disorder] and sexual identity are not rooted in biology, but in behavior, preference, and choice,” they argued, and

It follows, therefore, that the word “sex” as defined and encompassed by Title VII does not cover individuals who have GID or that claim discrimination on the basis of their sexual identity.

Plaintiff's expert Dr. Walter O. Bockting of the University of Minnesota has reached very different conclusions. “Chromosomal configuration is merely one of many aspects of sex; sex is more encompassing,” he said in his supplemental report.

According to Bockting, other aspects of sex include “gender identity,” which is a component of -- not a synonym for -- “sexual identity” and refers to “a person's basic sense of belonging to one sex or another.” And recent research on the causes of transsexualism

points toward the role of [prenatal] sexual differentiation in the brain in gender identity development.

In his April 2006 opinion, Judge Robertson noted the “factual complexities that underlie human sexual identity.” At least by acknowledging those complexities -– rather than taking the government's simplistic approach –- the plaintiff may yet prevail.