Breaking: Court Rules In Diane Schroer's Favor

Yayy!

:D

Lurleen on Twitter

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by: Lurleen @ Fri Sep 19, 2008 at 13:54:28 PM CDT

Relief

Not only is this a huge victory, it is a huge relief to me. As an FtM working for the federal government, it's nice to see there is some precedent for recourse if I lose my job.

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by: Kesnit @ Fri Sep 19, 2008 at 13:58:39 PM CDT

Whoa

Wait... is this as big a deal as it seems at first sight? The court seems to have just ruled here that gender identity discrimination is the same thing as sex discrimination. Was this a narrow ruling specifically related to the way in which this government-only "Title VII" regulation uses "sex discrimination", or would it apply to sex discrimination protections in other employment laws as well? I hesitate to say this because I don't understand any of the law here but it almost sounds like you could use this as precedent to argue that the trans inclusions dropped from ENDA are in fact implicit in employment laws that already exist.

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by: mcc @ Fri Sep 19, 2008 at 14:02:19 PM CDT

Giddiup

It is a big deal.  It is narrow in that it addresses only the factual situation before the court, which was a federal employee, but that makes it no less significant, especially when considered in conjunction with the Sixth Circuit cases that has taken the same approach to interpreting sex discrimination.  

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by: tro @ Fri Sep 19, 2008 at 14:18:16 PM CDT

[ Parent ]

A big deal?

Yes, it is a big deal!  As far as I know, this is the first federal court decision outside of the Sixth Circuit to find that discrimination against a trans person for being trans is illegal sex discrimination under Title VII.  (Kat, please correct me if I'm wrong on that.  I know the Ninth Circuit has acknowledged the validity of this theory but I don't know of any cases where it's actually been applied.)  In addition, if this decision is appealed and affirmed by the D.C. Circuit Court of Appeals, it will be an even bigger deal.  While a federal district court decision from D.C. is persuasive, it isn't binding precedent in other courts.  In other words, other courts are not required to follow its reasoning.  A Circuit of Appeals decision, on the other hand, is binding on all federal district courts (i.e., trial courts) in the states included in that Circuit.  The D.C. Circuit only covers D.C.  However, decisions by the D.C. Circuit Court of Appeals on questions of federal law are usually deemed very persuasive on those issues by other courts.

As for you other questions, no, this decision is isn't limited to employees of the federal government.  The same Title VII that applies to federal employment also applies to private employment nationwide (but only to employers with 15 or more employees).  Some states have also interpreted their own state sex discrimination laws to cover gender identity discrimination following the Sixth Circuit and the U.S. Supreme Court decision (Price Waterhouse v. Hopkins) on which this theory is based.

As for ENDA, some people argued that the inclusion of gender identity and expression was unnecessary for just that reason, i.e., that discrimination against trans people is already prohibited under Title VII.  Right now, however, that's only true in the Sixth Circuit (Kentucky, Michigan, Ohio and Tennessee).  The addition of specific gender identity protection to ENDA would remove the uncertainty that Diane Schroer faced as to whether other courts would also adopt that interpretation of Title VII. Therefore, it is still very important.

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by: Abby @ Fri Sep 19, 2008 at 14:51:55 PM CDT

[ Parent ]

Oh my goodness

As for you other questions, no, this decision is isn't limited to employees of the federal government.  The same Title VII that applies to federal employment also applies to private employment nationwide (but only to employers with 15 or more employees).

Yeah, I didn't realize which Title VII was being referred to until I looked it up :O Just... wow. It seems like this case will be a nearly Lawrence-level landmark if it holds up on appeal.

As for ENDA, some people argued that the inclusion of gender identity and expression was unnecessary for just that reason, i.e., that discrimination against trans people is already prohibited under Title VII.  Right now, however, that's only true in the Sixth Circuit (Kentucky, Michigan, Ohio and Tennessee).  The addition of specific gender identity protection to ENDA would remove the uncertainty that Diane Schroer faced as to whether other courts would also adopt that interpretation of Title VII. Therefore, it is still very important.

Do you think that this case could potentially make it easier to pass a full ENDA next year, on the grounds that it's preferable for the legislature to remove that ambugity? Or harder, on the grounds that the legislature will be even more inclined to punt the question to the courts?

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by: mcc @ Fri Sep 19, 2008 at 15:21:44 PM CDT

[ Parent ]

Punt or kick?

It could go either way, depending on the congressperson.  In general, however, I think it will make it easier, since it gives cover to anyone who was sitting on the fence to say to the folks back home that voting for an all-inclusive ENDA is just confirming what the courts have already done and not breaking new ground.

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by: Abby @ Fri Sep 19, 2008 at 16:28:17 PM CDT

[ Parent ]

DC Cir

What's the current makeup of the DC Circuit Court of Appeals?  Is it full of Dubya lackeys?

I haven't looked at the whole thing yet, but it does appear to be good.

Still - remember that Karen Ulane initially prevailed at the trial court level.  Most of us know how that turned out.

Kat

>^..^<

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by: KatRose @ Fri Sep 19, 2008 at 14:24:33 PM CDT

There are some nice succinct observations

From p. 20:

Preece's stated concern with Schroer's trustworthiness was belied by the fact that she thanked Schroer for her honesty in the course of rescinding the job offer. If Preece had really been concerned with Schroer's ability to focus on her work responsibilities, she could have raised the matter directly and asked Schroer additional questions about her planned surgeries, asked her current employer and references about Schroer's ability to focus, or spoken with Schroer's therapist, as Schroer had offered. Preece did none of those things.

Wow - analytical thinking.

What a concept!  

I am, however, concerned by other passages - from pp. 26-7:

Schroer's case indeed rests on direct evidence, and compelling evidence, that the Library's hiring decision was infected by sex stereotypes. Charlotte Preece, the decisonmaker, admitted that when she viewed the photographs of Schroer in traditionally feminine attire, with a feminine hairstyle and makeup, she saw a man in women's clothing. Tr. at 112-13. In conversations Preece had with colleagues at the Library after her lunch with Schroer, she repeatedly mentioned these photographs. Tr. at 120-21, 172-73. Preece testified that her difficulty comprehending Schroer's decision to undergo a gender transition was heightened because she viewed David Schroer not just as a man, but, in light of her Special Forces background, as a particularly masculine kind of man. Tr. at 124. Preece's perception of David Schroer as especially masculine made it all the more difficult for her to visualize Diane Schroer as anyone other than a man in a dress. Id.

This came in the context of distinguishing between discrimination based on sex stereotyping and discrimination based on transsexuality per se.  The judge does seem to have made a reasonable analysis here as well - but I'm sure an appellate court will twist it a diferent way.

Now - from p. 30:

The evidence establishes that the Library was
enthusiastic about hiring David Schroer -- until she disclosed her transsexuality. The Library revoked the offer when it learned that a man named David intended to become, legally, culturally, and physically, a woman named Diane. This was discrimination "because of . . . sex."

Now that's nice language.  The following, however, is even better:

Imagine that an employee is fired because she converts from Christianity to Judaism. Imagine too that her employer testifies that he harbors no bias toward either Christians or Jews but only "converts." That would be a clear case of discrimination "because of religion." No court would take seriously the notion that "converts" are not covered by the statute. Discrimination "because of religion" easily encompasses discrimination because of a change of religion. But in cases where the plaintiff has changed her sex, and faces discrimination because of the decision to stop presenting as a man and to start appearing as a woman, courts have traditionally carved such persons out of the statute by concluding that "transsexuality" is
unprotected by Title VII. In other words, courts have allowed their focus on the label "transsexual" to blind them to the statutory language itself.

Its about time.  I used that analogy in law review article almost a decade ago; and I know others have utilized it before and after I employed it.  Its about time that I court saw the light.

I just hope that the DC Circit and, if it goes on up, the Supreme Court, sees the same light.

>^..^<

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by: KatRose @ Fri Sep 19, 2008 at 14:48:11 PM CDT

[ Parent ]

How long does one have in USDC to file Notice of Appeal?

Don't they have a month or two to even just file notice? I'm not sure what circuit that District Court is in, but I can't imagine that they won't appeal this ruling. It couldn't possibly be heard before Election Day, so that shouldn't be a factor in the fed's decision.

only time will tell, now won't it?

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by: divashaniqua @ Sat Sep 20, 2008 at 09:40:17 AM CDT

[ Parent ]

First Glance

This is a good decision that should withstand appeal.  Of interest was taking on the 6th and 9th along with a strong cite of J. Scalia going along with the Title VII including male-male sexual harassement.

Of note was the complete dismissal of the expert witnesses. I am sure J. Robertson got a whole bunch of education about T people, their psychy, their anatomy, and how to make the outie an innie.

It will be interesting if the current administration puts up a fight.  I can see old man Mccain using this to inflate the passions of FoF, but with so much going on maybe not much more.  The current administration may try to slip this one in the appeals court while there is so much going on, but timing wise it will pop up and be noticed.

Pam,
J'aime ma Peau

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by: Blonde Pam @ Fri Sep 19, 2008 at 14:42:33 PM CDT

Rephrase

Rephrasing J. Scalia remark.  The cite is important because Scalia is frequently one of the absolute of the absolute.  So him explaining that Title Vii encompasses an action such as male to male sexual harrassement is important for covering more then the original writing of the Title VII.

Pam,
J'aime ma Peau

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by: Blonde Pam @ Fri Sep 19, 2008 at 14:46:11 PM CDT

[ Parent ]

yahooey!!!!

Alright! You just made my day!  

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by: juicyjuice @ Fri Sep 19, 2008 at 15:00:36 PM CDT

YAY YIPPPEE - !!

oh this is wonderful news fantastic precident...what a joyful win this truly is - does happy dance ! and did i say YAY !!!

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by: proudprogressive @ Fri Sep 19, 2008 at 15:34:18 PM CDT

WONDERFUL NEWS!!! ...and a perfectly sensible ruling.

Now go get 'em Diane. ... and please do not tell me that this case does not set a precedent as everyone has been saying about others for the past week or so.

It's the Hammer of JUSTICE,
It's the Bell of FREEDOM,
It's the Song about LOVE between,
my Brothers and my Sisters
...All over this Land.

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by: Orion45 @ Fri Sep 19, 2008 at 15:35:04 PM CDT

OK, re precedent.

Thanks, I see that below it only applies to the specific court jurisdiction unless it is appealed to the District, then it applies there. So yes it would seem specifying it in a fully-inclusive ENDA would give at least full legislative support.

It's the Hammer of JUSTICE,
It's the Bell of FREEDOM,
It's the Song about LOVE between,
my Brothers and my Sisters
...All over this Land.

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by: Orion45 @ Fri Sep 19, 2008 at 15:41:16 PM CDT

[ Parent ]

Neato!

An awesome victory for trans people - it's about time!  And if it survives at the appellate level, it could have strong persuasive power for trans people and GLB&Q's.  Quoting the ruling --

"In refusing to hire Diane Schroer because her appearance and background did not comport with the decisionmaker's sex stereotypes about how men and women should act and appear . . . the Library of Congress violated Title VII's prohibition on sex discrimination."

In my view, the judge is clearly correct - gender identity discrimination is based on "stereotypes about how men and women should act and appear", and thus fits within the ambit of Title VII.  The facts were clear as to why Schroer was fired, and the legal reasoning seems almost like a matter of dictionary definition.  Thus, I have a hard time seeing how this ruling could be overturned on appeal - unless the circuit court were somehow to abandon the judicial gloss (i.e. statutory interpretation) centering around "stereotyping".  However, this interpretation is so well-established that to abandon it would effectively steamroll the entire Title VII jurisprudence to this point - something courts are loath to do.

Now, I'd say sexual orientation discrimination clearly fits the same bill, in that, for instance, being sexually and romantically drawn to other women runs counter to homophobic stereotypes of how women "should act".  Or one could apply the standard legal reasoning principle that the greater (in scope) implies the lesser.  If having an entire identity that does not conform to social gender stereotypes qualifies one for Title VII protection, then certainly having a nonconforming part of one's identity [i.e. physical/romantic attraction] would qualify for the protection as well.

In any event, this tentative victory for trans people stands a damn good chance of becoming a permanent victory for trans people, and fertile ground for the rest of the GLBTQ community as well.  Huzzah!  :)

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by: CubPaws2008 @ Fri Sep 19, 2008 at 16:34:47 PM CDT

This is very significant!

It seems to me that Section B of this judgement is very iimportant to transsexuals who face discrimination.  I read it to eviscerate prior rulings that Title IV does not apply to tramssexuals because in those cases, the courts attempted to define the intent, rather than the actual letter of the statute.

I'm thrilled for Diane and for my trans sisters and brothers.  Unfortunately, we'll probably have to watch this go through several appeals before we cheer in full force!

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by: a2audrey @ Fri Sep 19, 2008 at 16:47:23 PM CDT

Woo hoo!

Awesome!

Tax the Christian Taliban!

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by: Wolfgang @ Fri Sep 19, 2008 at 20:46:10 PM CDT

Can't add anything more

to all the wonderful post here.

Just wanna say, YES!!! THIS IS AWESOME NEWS!!! A Victory for what is right and just and equitable.  So refreshing during this Bush/Cheney Plague.

Besser ein ende mit Schrecken als ein Schrecken ohne ende

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by: becca @ Fri Sep 19, 2008 at 20:57:30 PM CDT

The future

The DC Court of Appeals is pretty liberal as far as it goes. As has been pointed out, it would be great to have this stand up on appeal, because then it would be the law of the land.

Would we still need ENDA? Well, it would be good to have legislation. Keep in mind, however, that this is part of a Civil Rights Act, which is far more than ENDA. In some respects the trans community now has more rights than the gay community, which is quite the ironic turnaround.

Also, state ERAs have been helpful to women in many ways, not the least being, I believe, in helping the winning side in the Goodridge decision.

This ruling, with its analysis and logic, can only help in our push to get more state and local laws passed. We still need to do so because a) this might not be appealed, and then will have limited impact, b) if appealed we might lose, or c) even if we win a later Appeals court or the Supremes might overturn it. Better to have it enshrined in law.

Who knows? Maybe now we'll move from ENDA to a complete Civil Rights bill for the LGBT community.

Dr. Dana

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by: danabeyer @ Fri Sep 19, 2008 at 21:12:13 PM CDT

Only a Lawyer...

Justice was served. And this is a big deal, not so much because it affects a lot of transpeople - it doesn't - but because of the arguments the Judge used. Some of which I don't know how he could express with a straight face. I couldn't.

This was about Transphobia, pure and simple. But it required some creative and unreasonable (IMHO) interpretation of the law for justice to be served.

Remember, this is only a District Court, not a Circuit Court. And I'll quote from the Judgement:

...the Seventh Circuit held that discrimination based on sex means only that "it is unlawful to discriminate against women because they are women and against men because they are men."
...
The Ninth Circuit took a similar approach, holding
that Title VII did not extend protection to transsexuals because Congress's "manifest purpose" in enacting the statute was only "to ensure that men and women are treated equally."
...
More recently, the Tenth Circuit has also held that because "sex" under Title VII means nothing more than "male and female," the statute only extends protection to transsexual employees "if they are discriminated against because they are male or because they are female."

The Judge had to say, in effect, that all three circuits were full of it in order to rule as he did.

And he did it by adducing a theory of law that is only espoused by the most Arch of Arch-Conservatives - that the plain letter of the law is all, and intent is meaningless.

It is a Judo argument, turning their own words against them. It's also the direction the most Right-Wing of the El Supremos are steering the law, much to my discomfort. I'm right-wing, but not that right-wing.

Oh, but it gets better.

The Library asserts that the introduction and nonpassage of H.R. 2015 and H.R. 3686 shows that transsexuals are not currently covered by Title VII and also that Congress is content with the status quo. However, as Schroer points out, another reasonable interpretation of that legislative non-history is that some Members of Congress believe that the Ulane court and others have interpreted "sex" in an unduly narrow manner, that Title VII means what it says, and that the statute requires, not
amendment, but only correct interpretation.

When I saw that, I laughed out loud. Not just chuckles either, tears were streaming down my face.

Such a contention would only be "reasonable" - being defined as "not certainly known to be completely impossible" - in a court of law.

Does anyone seriously believe that a single congresscritter who voted against ENDA did so purely because they thought it was un-necessary, that trans-people were already protected? Does anyone believe that a single congresscritter who voted for a Trans-Exclusive ENDA that only covered Gays did so because Trans people didn't need the protection?

If so, I have this wonderful matching Harbour Bridge and Opera House in Sydney to sell you. Only used by a Little Old Lady from Parramatta. I'll throw in Tasmania for free.

Even those who argued this point in an attempt to justify Trans-Exclusion in ENDA did so with no enthusiasm. In view of the decisions by the Seventh, Ninth and Tenth circuits, it was too self-evidently absurd, and they soon stopped trying to argue the point. It was all about Pragmatism, not Principle, "Incrementalism".

The Judge is a very, very clever jurist. By giving the reasons he did, those conservative judges in other jurisdictions are caught in a zugzwang. They must either affirm conservative principles, and abide by the strict letter of the law, or appear to be one of those terrible liberal "judicial activists" they fulminate against. This is Judicial Judo at its finest. More liberal judges will just have to try to keep a straight face as they give their oh-so-conservative judgements that finally dispense, rather than dispense with, Justice.

There is no situation so complex it can't get even worse

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by: ZoeB @ Sat Sep 20, 2008 at 09:34:24 AM CDT

[ Parent ]