Gender Change and the Federal Hiring Process

A male applicant selected for a job at the Library of Congress had his job offer rescinded when he told the agency he would be starting the new job as a woman.

A district court has found the Library of Congress guilty of illegal sex discrimination for refusing to follow through on hiring a male applicant when it learned he was about to become a woman. (Schroer v. Billington, Librarian of Congress, D.D.C. Civil Action No. 05-1090 (JR), 9/19/08)

David Schroer applied for the terrorism specialist position with the Congressional Research Service. The job required a security clearance, which David already had as the result of a 25-year career with the Army Special Forces from which he retired as a Colonel. David was well qualified for the Library’s position, was the first choice of the hiring official who told David he had been selected. (Opinion pp. 1-4)

Before the paperwork was completed, David met with the selecting official to tell her that he was a transsexual and was about to undergo gender transition. He explained that he believed it would be “less disruptive” if he started his new job as a woman, Diane Schroer. (p. 4)

At this point, the Library rescinded the job offer and selected another applicant. The selecting official had several concerns, but her chief one was that Diane Schroer might not be able to retain the required security clearance that David Schroer had held for several years. (pp. 6-7)

Once she completed her gender transition, Diane Schroer sued the Library for sex discrimination.

Following a trial, Judge Robertson of the U.S. District Court for the District of Columbia found that “Schroer was discriminated against because of sex” in violation of the law. (p. 14) He found that the Library’s reasons for rescinding the hiring offer were pretexts for discrimination, and that the Library had engaged in sex stereotyping and discrimination. (pp. 14-15)

Judge Robertson stated, “Schroer’s case indeed rests on direct evidence, and compelling evidence, that the Library’s hiring decision was infected by sex stereotypes.” (p. 26) He importantly also concludes that the Library’s refusal to hire Schroer after learning that he was about to undergo sex reassignment surgery “was literally discrimination ‘because of …sex.'” (p. 34)

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.