Landmark federal decision on transgender employment discrimination: Schroer v. Billington

The Federal District Court for the District of Columbia issued a landmark ruling on Friday in the lawsuit by Diane Schroer against the Library of Congress. While there have been a number of rulings in favor of transgender plaintiffs under the federal sex discrimination statute, this is the first time a court has ruled that sex includes gender identity. Interestingly, I have a law review planned on this very subject for the Spring in Temple Political and Civil Rights Law Review

In a nutshell, Schroer, who had impeccable military credentials in counter-terrorism, applied for a job with the Library of Congress as a counter-terrorism expert in 2004. Schroer’s credentials and abilities were considered superior to all of the other candidates for the position, and she was offered, and accepted the position. However, at the time of the interviews, Schroer was living as a male under the name of David Schroer. After the position was offered and accepted, Schroer met with her new boss and advised that she would be transitioning from male to female in the future, and would prefer to start work as a female. Her new boss said she would need time to think about this, and notified Schroer the next day that the offer was rescinded.

Schroer contacted the ACLU, which filed suit against the Library and its director, Billington. The lawsuit was brought in the Federal District Court for the District of Columbia, where the library is located. Schroer sued on the grounds that Billington had discriminated on the basis of her sex in violation of the Civil Rights Act of 1964, a federal law that prohibits discrimination based on race, national origin, sex or religion. The judge selected for the lawsuit was Judge Robertson.

Prior rulings in the courts
In 2006, Billington, the Library’s Director, asked Judge Robertson to dismiss the lawsuit on the grounds that the Civil Rights Act of 1964, which prohibits sex discrimination, does not cover discrimination against a transgender person based on their gender identity. Judge Robertson denied Billington’s request. In August, 2008, a trial was held in which witnesses testified for Schroer and for Billington, and various documents were introduced as evidence for both sides. Usually, there is a jury hearing the testimony and reading the exhibits, and the jury would normally make a determination as to the facts of the case, and a decision as to the liability, if any, of the defendant. The judge’s job would be to decide any questions of law and courtroom procedure. However, this trial was held without a jury with the consent of both parties. In such cases, the judge makes all the rulings, including the determination of liability that the jury usually makes.

Judge Robertson decided in favor of Schroer both on the facts and on the law. Factually, he decided that Schroer had shown that the Library discriminated against her based on her gender identity. In addition, some of the reasons given by the Library for failure to hire Schroer were “pretexts” — untrue — and that the rest of the reasons were illegitimate and discriminatory in and of themselves. Legally, he also ruled in favor of Schroer’s argument that sex discrimination, which is prohibited by federal statute, includes discrimination because of gender identity. He did so on two grounds. First, he held that failure to hire is based on “sex” if it is because an employee does not conform to the psychological or behavioral stereotypes of his or her birth sex. Second, he held that “sex” (as in “sex discrimination”) includes gender identity.

This is a groundbreaking decision.

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