No - it is NOT legal to discriminate based on sex stereotypes. In the Price Waterhouse case, the Supreme Court did reject Hopkins' argument re the burden of proof, i.e. that the defendant had to meet a higher than normal standard in showing that sex stereotyping played no role in the decision. But the Supreme Court ACCEPTED the argument that sex stereotyping constituted a violation of Title VII.

The Price Waterhouse case was remanded for the lower courts to apply the normal standard of proof. On remand, though, Hopkins won again. The case ended with a decision that granted her back pay and ordered her promotion to partner. (920 F.2d 967) So she definitely won that case, and established the sex stereotyping theory of sex discrimination.

In the years since, the 1st, 3d, 6th, 7th, 9th and 10th circuits (federal courts of appeal)have all followed Price Waterhouse in cases alleging sex discrimination based on stereotypes. Most important for this discussion, the 6th Circuit has ruled in two cases that the theory applies to a transgender plaintiff: the Smith and Barnes cases (both cited in the Schroer decision).

There are also cases that reject the sex discrimination argument for transgender plaintiffs, but many of them are quite old. The ones, such as Ulane, that pre-date Price Waterhouse are arguably pretty worthless as precedent. The law is still developing on this point, and won't be finally resolved until there is a Supreme Court decision.

Bottom line - the sex stereotyping theory is alive and well. Conservative judges can give plaintiffs a hard time no matter which law they are suing under, but we could speculate all day about good laws that conservative judges would like to cut back. And of course there is no guarantee that courts will continue to expand the rights of transgender plaintiffs under Title VII. But the Schroer case, together with the two cases from the 6th Circuit Court of Appeals, are immensely heartening.

This is a very good question, and I think that people will have different preferences for a variety of reasons. In my view, neither choice is so clearly correct that it should not be open to re-evaluation as future developments unfold, based on what seems like the best chance for success. I think it's a big mistake to commit to one strategy come hell or high water. I would be quite happy to win with either. That, I think, is the single most important point.

In general, it’s very difficult to compare an already-existing law with legislation that still could be altered before its enactment. However, assuming that ENDA passes in the form in which it passed the House in 2007, with the only change being that gender identity is also protected as it was in the original bill --

The court procedures, possible remedies, EEOC processing, time deadlines, etc would be exactly the same for ENDA as for Title VII. The employers covered under the two would be the same (minimum of 15 employees, no coverage of military servicemembers).

The scope of the religious exemption is better for plaintiffs under Title VII than it would be under ENDA. Under Title VII, certain religious organizations are allowed to discriminate based on religion, but not based on sex. Under ENDA, the same religious organizations would be allowed to discriminate based on sex/o and GI.

Title VII covers both disparate treatment and disparate impact forms of discrimination, while ENDA would cover only the former. On the other hand, there is a BFOQ (bona fide occupational qualification) defense available to employers sued for sex discrimination that is not included in ENDA.

The strongest point of ENDA is that the unpassed version includes provisions for "certain shared facilities" (bathrooms, etc) and "dress and grooming standards" that would establish the ground rules for cases involving those issues. This could be thought of as providing for a form of reasonable accommodation, which Title VII doesn't have. (Of course, I am assuming that these provisions would not be altered in a future trans-inclusive version of the bill.)

Another strong point of Title VII is that it has a large body of case law already built up, and judges are accustomed to adjudicating Title VII cases. It will take a while for them to get used to ENDA cases, although they will, so the differential will fade with time.

Politically, I think that our chances of securing protection for trans people, the debacle last year notwithstanding, are stronger with the Dem leadership in Congress and an Obama presidency than with the current Supreme Court. But right now, the outcome of the 2008 election looks uncertain.

The situation is that the Justice Department is the lawyer and the Library of Congress is the client. Normally, any client agency that has lost a case will want to appeal. The typical dynamic is that the Justice Department evaluates whether there are reasons not to appeal, and notifies the agency of what it plans to do. In 99% of the cases, there is no disagreement between the agency/client and the Justice Department, and the decision is effectively made by the Justice Department.

However, the client COULD decide for its own reasons that it does not want to appeal. So Barney's move was a good one.