As Professor Hunter noted, 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. This point is going to be controversial, even among those who like the Judge's ruling and, I suspect, among transgender people. Interestingly, I have a law review planned on this very subject for the Spring in the Temple Political and Civil Rights Law Review.

What issues did Judge Robertson decide?

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, and not for some other reason, as they had claimed.

It is often this way. A transgender employee gets the feeling -- sometimes from slightly creepy statements and odd glances -- that her employer has a problem with his or her gender identity. When the question is asked, however, it is denied, but negative feelings come out in the form of "performance reviews" or some similar reasonable-sounding phrases.

Here, Judge Robertson found that, despite the Library's protests that it had no problem with Diane Schroer's gender identity, some of the "legitimate" reasons given by the Library for failure to hire Schroer were "pretexts" -- untrue. Interestingly, he held that the rest of the reasons were illegitimate and discriminatory in and of themselves, though the Library thought them gender-neutral. This is important because it is sometimes important to pierce the veil of neutrality, as when employers say "I have no problem with you, but our customers do."

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. The first point is important because it confirms previous court rulings that include transgender employees in protections against sex stereotyping. The second point is important because there was only one prior court opinion holding that gender identity is a part of sex, and that was overruled by the Seventh Circuit more than 20 years ago.

Factual issues in Schroer v. Billington

A. Pretextual reasons - security classification, trustworthiness, distraction

Judge Robertson disallowed three of the Library's reasons, saying that they were a "pretext" for discrimination. In ordinary parlance, a "pretext" is a cover-up. It is an attempt to conceal one's true reason -- in this case animus based on gender identity -- with a false reason that is otherwise legitimate. Here is an example: "I didn't refuse to hire X because I don't like people of that race, religion, gender identity, etc., it's just that s/he wasn't as qualified as the other applicants." There are several ways to demonstrate that this is a pretext.

Most commonly, X shows that his or her qualifications were as good or better than the others, or that the employer admitted that the race, religion or other protected category was a determinative factor. The three reasons given by the Library that the judge found to be pretexts were: 1) gender transition would affect Schroer's security classification, 2) Schroer's trustworthiness was in question because the disclosure did not come in the intial interview, and 3) the pressures of gender transition would distract Schroer from her job duties. Judge Robertson found that the Library was essentially lying when it contended that these were the reasons for its refusal to hire Schroer.

Trustworthiness and distraction are common issues raised by employers in regard to transgender people. Some employers see failure to disclose transgender status up front to be dishonesy. Others wonder if you'll be able to concentrate on your job while undergoing a gender transition. However, employers rarely inquire into these issues, and they are often side arguments for the real reason: the employer is feeling uncomfortable and distracted, and the employer is not honest enough to admit it.

B. Illegitimate reasons - credibility and contacts with others

Judge Robertson disallowed the Library's other two reasons as being illegitimate and discriminatory in and of themselves. The Library's hiring manager thought that Schroer's gender transition might diminish her credibility with Members of Congress, whom she would be called upon to serve, and that she might be unable to maintain contacts in the military, an important qualification for the job. The Library thought that these reasons were legitimate because they were work-related qualifications not explicitly grounded in gender identity. The judge disagreed.

The Library's final two proffered legitimate nondiscriminatory reasons -- that Schroer might lack credibility with Members of Congress, and that she might be unable to maintain contacts in the military -- were explicitly based on her gender non-conformity and her transition from male to female and are facially discriminatory as a matter of law. Deference to the real or presumed biases of others is discrimination, no less than if an employer acts on behalf of his own prejudices. See Williams v. Trans World Airlines, Inc., 660 F.2d 1267, 1270 (8th Cir. 1981) (firing employee in response to racially charged, unverified customer complaint is direct evidence of racial discrimination by employer); cf. Fernandez v. Wynn Oil Co., 653 F.2d 1273, 1276 (9th Cir. 1981) ("stereotypic impressions of male and female roles do not qualify gender as a [bona fide occupational qualification]"); Diaz v. Pan American World Airways, Inc., 442 F.2d 385 (5th Cir. 1971) (same). In any event, the Library made no effort to discern if its concern was actually a reasonable one, as it easily could have done by contacting any of the high-ranking military officials that Schroer listed as references. Pl. Ex. 5.

The Judge's reasoning goes directly to the heart of one of the major concerns of employers of transgender people: whether customer and clients will take their business elsewhere. As a capitalist nation, our society is based on the proposition that our government should interfere as little as possible, consistent with public safety, with businesses. I have spoken to many employers about this issue, and they have often raised concerns about losing business, and have assumed that such concerns would justify dismissal of transgender persons, or moving transgender personnel to non-customer-facing positions (if available), without violating the law. Judge Robertson's ruling demonstrates that employers cannot safely make such assumptions.

These factual findings are going to be hard to change on appeal, because the federal appeals courts are loathe to second-guess the trial judges and juries. Trial judges and juries, who hear the oral testimony of witnesses, are in a better position to judge their credibility than appeals courts, which can only read written transcripts. For this reason, appeals courts generally cannot reverse the factual findings of a trial judge, such as Judge Robertson, unless they are "clearly erroneous." That is a tough standard for the Library to meet, and so these probably won't be reversed on appeal. (Which is not to say they can't be reversed, only that they probably won't be.)

In the next part of this post, I will discuss the legal issues decided by Judge Robertson. These are even more startling than his decisions on the factual issues.

Legal issues

A. Sex stereotyping

Judge Robertson ruled in favor of Schroer's argument that sex discrimination, which is prohibited by federal statute, includes discrimination because of gender identity. That he did so is interesting because he previously ruled against her on this point. When he was asked in 2006 by the defense to dismiss the case before trial on the ground that the federal sex discrimination statute, the Civil Rights Act of 1964, did not cover transsexuals, he initially ruled that she could continue her lawsuit, but not on the grounds of sex stereotyping. This demonstrates an important fact for transgender plaintiffs -- judges find it very hard to understand the concept of gender identity.

In ruling as he did in 2006, Judge Roberston took a hard road. His view was that "sex" as defined in the Civil Rights Act could include gender identity. This directly contradicted the more traditional legal view that "changing sex" is different from sex itself. In this view, it is important that Congress didn't have that in mind when it enacted the Civil Rights Act of 1964, the federal statute that prohibits sex discrimination.

Some federal courts, however, have sidestepped this problem. They have allowed transgender plaintiffs to win on sex discrimination claims based on a newer legal conception of sex discrimination -- that of "sex stereotyping". Judge Robertson's 2006 ruling went against this sidestepping idea. However, in his more recent opinion, he reversed himself and ruled that Schroer deserved to win on both the sex=gender claim and the sex stereotyping claim. It is for this reason that his opinion is rightly considered a landmark decision.

As we've just discussed, Judge Robertson ruled for Diane Schroer in his most recent opinion 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. This is called "sex stereotyping," and it has been considered illegal sex discrimination since 1989, when the Supreme Court ruled, in a case called Price-Waterhouse v. Hopkins, that "as for the legal relevance of sex stereotyping, we are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group." (Prior to that time, it had been assumed by some courts that the law only prohibited discrimination based specifically on anatomy.) In 2006, the Federal Circuit Court of Appeals for the Sixth Circuit, the federal appeals court that covers Ohio, Kentucky and Tennessee, used this Price-Waterhouse "sex stereotyping" idea to rule in favor of a transgender plaintiff. (There were prior courts that also did so, but none on the federal appeals level.) Thus, Judge Robertson is in good company in ruling in favor of Diane Schroer.

There is, however, one very large fly in the ointment for Judge Robertson -- the fact that he ruled against the sex stereotyping claim in 2006. Thus, he seriously needed to explain his prior ruling, because he is essentially overruling himself in this recent opinion.

In order to understand the problem, one must understand that there are several types of evidence in an employment discrimination claim. One of these is "direct" evidence of discrimination, in which the employer says some variation of "you're fired because of your race/national origin/gender/religion". Another type of evidence is "disparate treatment" evidence of discrimination, in which the employer never says anything against race/nationality/gender/religion. Rather, the employer treats the employee differently, and the different treatment appears to be on the basis of race/national origin/gender/religion. These distinctions should be unimportant to the Schroer case, because it involves direct evidence of discrimination (as in you're fired because of your gender), and not disparate treatment (as you're fired but its for some reason other than your gender).

In his prior ruling, Judge Robertson had said something about not approving of sex stereotyping lawsuits for transgender plaintiffs when they are of the "disparate treatment" type. However, what he said made little sense because the Schroer suit wasn't of that type. So he had to do a little backtracking.

Here's what Judge Robertson said about his opinion from two years ago:

I held that what Price Waterhouse actually recognized was a Title VII action for disparate treatment, as between men and women, based on sex stereotyping. Accordingly, I concluded that "[a]dverse action taken on the basis of an employer's gender stereotype that does not impose unequal burdens on men and women does not state a claim under Title VII." While I agreed with the Sixth Circuit that a plaintiff's transsexuality is not a bar to a sex stereotyping claim, I took the position that "such a claim must actually arise from the employee's appearance or conduct and the employer's stereotypical perceptions." In other words, "a Price-Waterhouse claim could not be supported by facts showing that [an adverse employment action] resulted solely from [the plaintiff's] disclosure of her gender dysphoria."

This distinction did not make a lot of sense, at least to me, at the time the prior decision was made, and it still makes little sense. (I did note this all in my blog post on the ruling when it came out two years ago, but I'm not the I-told-you-so-type. Okay, maybe a little.) The Schroer case is not a "disparate treatment" case. Now, most judges, having misunderstood the case and issuing a ruling based on that misunderstanding, would gloss over it entirely and hope the appeals court is also sufficiently confused so that the mistake goes unnoticed.

Judge Robertson, however, is apparently a different breed. In his opinion, he says: "That was before the development of the factual record that is now before me." In other words, if I knew then what I know now, I would never have said that. He's admitting to a little boo-boo. That's a mensch. In defense of Judge Robertson, I must say that the legal framework relating to employment discrimination cases is a mess, and it's very easy to misunderstand. He goes on to say that his conclusion about a disparate treatment requirement relied heavily on the panel decision in Jespersen v. Harrah Operating Co. That was a terribly flawed decision by the Ninth Circuit in California that held that employers could demand that female employees wear stockings and colored nail polish, to wear their hair "teased, urled, or styled," and to wear make-up. The court said that this imposed no unequal burden on women, so it was okay. I suppose high heels and miniskirts wouldn't be much of a burden either, in the Ninth Circuit's mind, and while we're at it, how about some of those hot stockings with the seam up the back?

Anyway, Ninth Circuit aside, Judge Robertson said that the Jespersen case had gotten him so confused that he thought that Schroer's case was similar, but has since come to his senses. He acknowleges in his opinion that the two cases aren't at all similar. Instead, he recognizes that the sole issue here is whether the employer failed to hire her because of her sex.

Judge Robertson then detailed the 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. In conversations Preece had with colleagues at the Library after her lunch with Schroer, she repeatedly mentioned these photographs. 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. 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. Preece admitted that she believed that others at CRS, as well as Members of Congress and their staffs, would not take Diane Schroer seriously because they, too, would view her as a man in women's clothing.

This is pretty telling stuff. Man (sex) in women's (gender) clothing. Man = certain clothing. Woman = other clothing. That's your classic stereotyping based on sex. Some courts have refused to recognize this as sex stereotyping when it involves transgender employees. They have ruled that it stretches the concept of stereotyping to the breaking point to use it to allow men to dress as women. They also object because the term "sex" in the federal sex discrimination statute has been held by so many courts not to include transsexual or transgender plaintiffs.

This is where Judge Robertson's approach nears genius. Instead of using one approach or the other -- he uses both.

Does "sex" include gender identity?

Although Judge Robertson seemed pretty clear that sex stereotyping had occurred, he noted a problem with a claim on that basis. Namely, pretty much every other court that had looked at this issue of sex discrimination in the federal statute said that it doesn't cover discrimination based on transsexuality.

What makes Schroer's sex stereotyping theory difficult is that, when the plaintiff is transsexual, direct evidence of discrimination based on sex stereotypes may look a great deal like discrimination based on transsexuality itself, a characteristic that, in and of itself, nearly all federal courts have said is unprotected by Title VII.

Courts are generally leery of saying that something is allowed, but that it's also illegal if you call it by a different name. There's even a case from the same court as Judge Robertson, the Federal District Court for D.C., from a little over twenty years ago (which is like 5 minutes in legal years) saying transsexuals aren't covered by the federal statute. And judges don't like overruling prior cases from their court unless there's a pretty good reason to do it. It's bad precedent, and undermines the authority of the courts.

So what's a judge to do? He could have discussed the tiny differences between the sex stereotyping cases and the "sex-doesn't-mean-transsexuals" cases and come up with something basically plausible. He could have said, as some other courts have in this situation, that the authority of those older cases is in question but he's not overruling them. But instead, Judge Robertson, in a bold stroke, cuts the Gordian knot and says it isn't necessary to decide between these two.

Ultimately, I do not think that it matters for purposes of Title VII liability whether the Library withdrew its offer of employment because it perceived Schroer to be an insufficiently masculine man, an insufficiently feminine woman, or an inherently gender-nonconforming transsexual. One or more of Preece's comments could be parsed in each of these three ways. While I would therefore conclude that Schroer is entitled to judgment based on a Price Waterhouse-type claim for sex stereotyping, I also conclude that she is entitled to judgment based on the language of the statute itself.

Wow. Judge Robertson avoids the need to decide between the sex stereotyping claim and the sex discrimination claim, and he explains this is because, according to the expert testimony (from Walter Bockting of WPATH), "gender identity" is a component of sex.

Now just wait a minute! Hold the phone! I hear all of the academic gender theory people groaning - but sex and gender are different! Sex is between the legs and gender is between the ears! Well, maybe so, maybe so. But the fact that the two have differences doesn't mean that "sex discrimination" therefore doesn't cover "gender discrimination." From a legal point of view, it would be kind of absurd to say that even though the statute prohibits "sex discrimination," it's okay to boot Diane Schroer out the door because they discriminated against her gender, and not her sex. The academic notion that gender identity can be understood separately from sexual anatomy does not mean that "sex discrimination" is limited to sexual anatomy. In fact, that what the Price-Waterhouse decision was all about - sex discrimination does not end at the belt-buckle.

This all requires a lot more discussion. There's no room for it here. However, I would like to note that I have been thinking about this issue for a long time, and I have a law review article planned for the Spring issue of the Temple Political and Civil Rights Law Review on this specific point.

Is changing religion like changing sex?

Here's where Judge Robertson get really ingenious. He recognizes that the definition of sex is a hotly contested area, so he changes gears, and says that it is unnecessary to decide what the scientific definition of sex is. Rather, the only question is what the statutory definition of sex is. And since the Civil Rights Act of 1964 prohibits discrimination based on race, national origin, sex and religion, he analogizes the "sex" claim to the "religion" claim. He notes that no court would accept the argument that discrimination based on changing religion is allowed, even though the statute does not explicitly state this. He also notes that race discrimination has not been limited to exclude discrimination based on interracial marriage or interracial friendships.

This religion analogy has been raised in many places. I have used it myself, and heard many others refer to it. Professor Julie Greenberg used it in a law review article in 1999. It is a pretty obvious problem with the "sex-but-not-changing-sex" argument. But it has never before been found in a court opinion. It is a powerful argument, and Judge Robertson uses it well.

So those many courts that have accepted a similar argument -- that sex discrimination is limited to exclude changing sex -- are wrong. Furthermore, those courts relied heavily on the idea that the Congress of 1964 did not intend to include transsexuals in sex discrimination. Judge Robertson has the nerve to quote Justice Scalia -- one of the most conservative Justices on the Supreme Court -- for the proposition that this would elevate "judge-supposed legislative intent over clear statutory text." That one puts a stopper in the mouths of conservative critics.

Judge Robertson goes a step further. He says that even if those court opinions interpreting "sex" as anatomy-only are still good law, then firing Diane Schroer for intending to go through anatomy-changing sex reassignment surgery was still literally sex discrimination within that view.

By the way, the judge also rejected the defense argument that the introduction of ENDA (and SPLENDA, the split-off gender identity bill) militates in their favor. They argued that the failure to enact ENDA showed that transsexuals are not covered by Title VII, an that Congress is content with the status quo. Judge Robertson discussed the perils of trying to divine statutory meaning from Congressional inaction. Clearly, Judge Robertson is sympathetic to the plaintiff here. In the hands of a less sympathetic judge, I think this argument would have carried a lot of weight for the defense.

What this decision means for transgender employees

This decision only directly affects transgender employees working in the District of Columbia. Much more important for transgender employees are the explicit state laws and court rulings prohibiting gender identity discrimination in more than 20 states and almost 100 cities.

However, the DC Circuit Court is considered quite influential among federal courts. The fact that this court is now joining the Sixth Circuit (the federal appeals court covering Ohio, Kentucky and Tennessee) in favor of transgender employees, and that other circuits have given indications that they could rule similarly, including the First, Second, Third and Ninth Circuits, means that future complaints of discrimination could get a favorable hearing the federal courts. In addition, it also means that there is a major split in the federal Circuits. A split in the Circuits is often a precursor to a Supreme Court hearing.

One of the major problems with ENDA in Congress, and the issue of gender identity inclusion, is that too many Members and Senators say they don't know much about the issue. (This, despite years of me going to lobby days and calling and writing to my officials!) If this issue went to the Supreme Court, that argument would have to go out the window, because the attendant publicity would dwarf all of the education efforts heretofore made.

Although a majority of the Justices are very conservative, and would presumably be unsympathetic to a transgender plaintiff, this common wisdom may be misplaced, however, because the current Court is also unsympathetic to the legislative history arguments that loomed large in the Circuit opinions against transgender plaintiffs. Many of the Justices subscribe to originalist legal theories that emphasize textual analysis over legislative history. Because the meaning of the word "sex" today includes connotations of gender and gendered behavior, a conservative textualist may well conclude that the plain meaning of the word "sex" in Title VII refers to shades of gender identity and expression.

Keep in mind that a very similar Supreme Court brought in a unanimous vote on Lawrence v. Texas. Hope springs eternal.