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Judge OKs Library of Congress bias suit
by Ann Rostow
PlanetOut Network


A U.S. District Court judge in Washington, D.C., has added a new twist to a complicated area of employment law, ruling that a transgender national security expert can sue the Library of Congress for sex discrimination under the federal statute that bars workplace bias. In his ruling Friday, Judge James Robertson rejected a motion to dismiss and sent the case of Diane Schroer to trial.

Schroer was a 25-year veteran of the U.S. Army and a counter-terrorism expert when she was recruited for a job at the Congressional Research Service, an arm of the Library of Congress. Although Schroer was on the verge of beginning a transition, she had not yet done so and had interviewed in male attire. After accepting the post and negotiating her salary, she took her new boss to lunch to explain that she was starting the first phase of gender reassignment, and would be reporting to work as a woman. The next day, Schroer was informed that she was "not a good fit" for the organization. The job offer was rescinded.


Title VII of the Civil Rights Act of 1964 bars workplace discrimination "because of ? sex" and other factors. Courts have interpreted those three words to encompass sexual harassment on the job, as well as discrimination based on sexual stereotyping. In a famous 1989 case, Price Waterhouse v. Hopkins, the U.S. Supreme Court ruled that an accounting firm that denied partnership to a masculine woman because she did not fit the corporate standards of femininity was in violation of Title VII's ban on sex discrimination.

In recent years, gay and transgender victims of workplace bias or harassment have used Price Waterhouse to argue that their experiences were tantamount to sexual stereotyping, particularly in cases where male coworkers preyed on effeminate gay men or masculine transitioning women. Some claims have succeeded, and others have come up short, mainly because Title VII does not explicitly protect against bias based on sexual orientation or gender identity.

But in Schroer's case, Judge James Robertson ruled that there was no evidence of sexual stereotyping, because Schroer's presentation of herself conformed to society's expectations of women. She was not a man trying to wear women's clothes to work, or a masculine women defying gender norms. Instead, Robertson used a more direct analysis, ruling that the retraction of the position based solely on Schroer's transgender status could be interpreted as flat out sex discrimination.

"Schroer is not seeking acceptance as a man with feminine traits," Robertson wrote. "The problem she faces is not because she does not conform to the Library's stereotypes about how men and women should look and behave -- she accepts those norms. Rather, her problems stem from the Library's intolerance toward a person like her, whose gender identity does not match her anatomical sex."

Schroer is represented by the American Civil Liberties Union's Lesbian, Gay, Bisexual and Transgender Project.

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