While I have been in transit an interesting story has been unfolding in the field of transgender rights. It centers on an employment discrimination case. Colonel David Schroer applied to the Library of Congress for a job as an expert on counter-terrorism issues, a subject on which Schroer was very well qualified. The Library was initially enthusiastic, but on learning that Schroer was undergoing gender reassignment and would be coming to work as Diane they told her she could not have the job. With the help of the ACLU, Schroer sued for sex discrimination, and won. There’s a long and learned post about the case by Dr. Jillian T. Weiss, an expert in transgender law issues, here. If you’d like my potted (and probably slightly off on the finer points of law) layman’s version, read on.
No one will be more surprised than the Library of Congress that they lost this case. It should have been a slam dunk. There is a long history of failed suits for sex discrimination by transsexuals in the US. It is very clear that, under US law, firing someone for being transsexual is legal. But the Library appears to have been so confident that they failed to get their arguments properly lined up, and they came across a judge who had little time for people who showed such obvious prejudice.
Judge Robertson found against the Library on matters of both fact and law. Factually the judge regarded several of the Library’s excuses for not hiring Schroer to be flimsy pretexts for “we don’t like trannies”, and judges prefer people to be honest when making their case. Judge Robertson also noted that the Library had made no attempt to determine the truth of their assertion that Schroer would be unable to work effectively with the military because of her transition – an omission made all the more obvious by the fact that Schroer set up a private consultancy and now has a long list of happy clients from her old military days.
But it is the findings of law that are perhaps the most interesting. There is plenty of case history to attest to the fact that refusing to hire someone because they are a transsexual is legal in the US (at least from a federal point of view – some states such as California have enacted local legislation to outlaw such practices). If the Library had simply said “we don’t employ trannies” they might have gotten away with it. But they went into this whole song and dance about how they, and their clients, would not want to work with “a man in dress”. What Judge Robertson appears to have been thinking here (and I’m interpreting a little) is that if Colonel Schroer had gone through the whole of her military career as Diane she might well have come out of it heavily built, bulging with muscles, with short hair and little time for or ability with clothes and make-up; in other words she might have looked a bit like a man in a dress. And to have not given her the job on those grounds would have been a clear case of discrimination. So if it is only her looks that the Library was objecting to, well, case dismissed.
The obvious question here is what will happen to the case on appeal. My initial thought was that it will get reversed pretty quickly, but Dr. Weiss, who knows much more about such things than me, says that the way the judgment was made will make this very difficult. I suspect that an attempt will still be made, because this is such a huge slap in the face for the Republicans, but it is going to have to take a lot of legal slipperiness or a display of outright prejudice to overturn it.
I don’t think this will make a huge difference to actual employment rights for transgender people. To start with, if I am reading Dr. Weiss correctly, all companies have to do is have a policy of “we don’t employ transsexuals” and they are automatically covered by existing precedent – they don’t have to say anything else and risk getting into a mess like the Library of Congress did. In any case, refusing to hire someone because they are transgender, or firing them when you find out that they are, is ridiculously easy for a competent HR department. Even in the San Francisco Bay Area, 75% of the transgender population does not have full time employment. Furthermore, it takes someone with the sort of bravery and determination that Diane Schroer has shown to fight a case like this. Nevertheless, this is a landmark ruling, and one that will send shock waves through HR departments all over the USA. It will also act as a welcome kick in the pants for the Democrats in Congress, many of whom still believe that transgender rights are an issue that they dare not touch.