Yesterday, in the first ever victory directly on this point, the ACLU won a federal court decision holding that discrimination against a transgender person constitutes per se sex discrimination in violation of Title VII. In Schroer v Billington, Judge James Robertson of the U. S. District Court for the District of Columbia ruled that the Library of Congress discriminated against Diane Schroer when it rescinded a job offer to her after Schroer disclosed that she was transitioning from male to female.(Link to text after the jump.)
The most important aspect of the decision is the ruling that discrimination based on gender identity is literally discrimination based on sex. Schorer's lawyers argued, and the judge agreed, that gender identity is a component of sex, and therefore discrimination based on gender identity is sex discrimination. This might sound like a simple proposition, but previous federal courts have "carved [transgender] persons out of the statute by concluding that 'transsexuality' is unprotected by Title VII."
This is a big deal politically as well as legally because it gives new life to the argument that Title VII already --that is, without ENDA -- prohibits discrimination based on gender identity. It was a series of earlier court decisions rejecting that theory - plus the explicit exclusion of transgender persons from the scope of the Americans with Disabilities Act - that left advocates with no option other than to seek explicit protection of gender identity through separate legislation. While Schroer is only one judge's decision and so cannot by itself alter the dynamics of this debate, it will at the least bolster the Title VII argument in future cases, especially if it is upheld on appeal.
Schroer's lawyers litigated the case based on two theories of discrimination, both of which the judge accepted. First, the judge found that there was "compelling evidence that the Library's hiring decision was infected by sex stereotypes." On that basis, Schroer was entitled to relief under the line of cases beginning with Price Waterhouse v. Hopkins, which created the sex stereotyping doctrine. In that case, the Court found that Title VII was violated when a woman was denied a job after being told to wear make-up and take a course at charm school. Evidence in the Schroer trial established that the negative reaction to Schroer grew out of her not fitting gender stereotypes by virtue of her decision to change genders.
More important was the second theory: that discrimination based on gender transition should be considered a form of discrimination based on sex. The Schroer court held that just as discrimination against converts from one to faith to another is still discrimination based on religion, so too discrimination against transgender persons is still sex discrimination. Although doubtless Congress did not have transgender persons in mind when Title VII was enacted in 1964, the court found that the plain text of the statute covers this situation.
Although the Schroer decision is an enormous breakthrough in the law, the caveat is that it is a trial-level court decision. The Justice Department (which represents all federal agencies in court) is likely to appeal it. It's impossible to predict what the outcome of the appeal will be. One cause for optimism is that the decision is based on a full factual record, including expert testimony on the key issue of gender identity being considered a component of sex. (Trial described in previous posts here and here.) That will make it more difficult (though not impossible) for the court of appeals to reverse it. Also, because the case does not involve a challenge to the validity of a federal statute, but only to the lawfulness of one hiring decision, the Justice Department could elect not to appeal (perhaps under a Democratic administration?).
ENDA played a role in the case because the Justice Department argued that its passage last year by the House of Representatives without gender identity protection signaled congressional intent not to protect transgender persons. Maybe, said Judge Robertson, or maybe Congress believes that Title VII, properly interpreted, solves the problem. In any event, the language of Title VII settled the question for him. This issue, too, of the legal consequence, if any, of the House vote last year could be re-argued if there is an appeal.
Full decision here:
Schroer v Billington.pdf