From David, To Diane, To Federal Court

By on April 3, 2006 in Current Events with 0 Comments

The United States District Court for the District of Columbia has refused to dismiss for failure to state a claim in a case involving an allegation of sex discrimination by the Library of Congress brought by a male-to-female transsexual. The effect is to let the Plaintiff pursue her case against the Library. (Schroer v. Billington, D.D.C. Civil Action No. 05-1090(JR), 3/31/06)

Ms. Schroer applied for a position with the Library as a terrorism research analyst with the Congressional Research Service. She was found highly qualified and was selected for the position.

After the offer/acceptance process, she was invited to come into the office to discuss administrative matters and to meet some of her future co-workers. Because she was at that time just about to begin the process of presenting as a woman (she applied when she was still presenting as a man, her gender at birth), Ms. Schroer decided to explain to the selecting official that she would be going through a “sex-reassignment process.” Thus, when she actually started work she would be presenting as a woman.

Up to this time, she had been interacting with the interviewing committee and the selecting official as a male. Indicating that Schroer had given her “something to think about,” the selecting official waited until the next day to inform Schroer that she had decided that “for the good of the service” Schroer would not be a “good fit” at the CRS. Schroer was later informed by e-mail that the job had been filled with another candidate. (Opinion, p. 6)

Ms. Schroer alleged sex discrimination under Title VII and the case wound up before the District Court for the District of Columbia. Pointing out that application of the prohibition against sex discrimination in the context of transsexuals was “complex,” the court declined to dismiss the case for failure to state a claim.

The court pointed out that until recently every court that “squarely” faced the issue had held that Title VII does not prohibit discrimination on the basis of transsexualism or gender identity, based on a narrow reading of the congressional intent. However, the Supreme Court’s discussion of sex stereotyping in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) challenged this narrow view. (Opinion, p. 7) There, the Court stated that Title VII reaches claims of discrimination based on “sex stereotyping.” The district court quoted the Supreme Court: “We are beyond the day…when an employer could evaluate employees by assuming or insisting that they matched the stereotypes associated with their group.” (490 U.S. 228 at 251 as quoted in Opinion, p. 9)

The district court goes on to say that “it may be time to revisit” the notion that “discrimination against transsexuals because they are transsexuals is ‘literally’ discrimination ‘because of…sex.’” (Emphasis in original. Opinion, p. 20, quoting Ulane v. Eastern Airlines, Inc. , 581 F.Supp. 821, 825 (N.D. Ill. 1983))

In effect, Ms. Schroer can pursue her claim arguing sex discrimination.

Schroer v. Billington, D.D.C. Civil Action No. 05-1090(JR), 3/31/06

© 2016 Susan McGuire Smith. All rights reserved. This article may not be reproduced without express written consent from Susan McGuire Smith.


About the Author

Susan McGuire Smith spent most of her federal legal career with NASA, serving as Chief Counsel at Marshall Space Flight Center for 14 years. Her expertise is in government contracts, ethics, and personnel law.