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Sunday, August 17, 2008

Schroer v. Billington: Trial scheduled this week

The case of Schroer v. Billington, first discussed in this blog two years ago, is a lawsuit by Diane Schroer, who was hired by the Library of Congress as a counter-terrorism expert, against the federal government's director of the Library of Congress. The trial is scheduled to begin this Tuesday, August 19, 2008.

Schroer's credentials are impressive: Schroer was an Airborne Ranger qualified Special Forces officer who completed over 450 parachute jumps, received numerous decorations including the Defense Superior Service Medal, and was hand-picked to head up a classified national security operation. She retired as a Colonel after 25 years of distinguished service in the Army. She applied for and was chosen to as a terrorism research analyst at the Library of Congress, which she accepted. However, she was fired when, after her hire but before beginning the job, she told her new boss that she was planning on transitioning from male to female. After Schroer filed her lawsuit, the government made a motion to Judge James Robertson, the judge in charge of the case, to ask the court to dismiss the lawsuit. The government's argument was that there is no law barring the federal government from discriminating against a person based on transgender status. Schroer countered by arguing that the federal statute prohibiting gender discrimination prohibits discrimination based on gender identity.

Interestingly, Schroer's case was highlighted in 2005 in a full-page ad in Roll Call, the Capitol Hill newspaper that covers all things congressional. See NCTE and HRC Team To Empower Increased Education of Policymakers

In 2006, Judge Roberston issued his ruling on the motion. He held that the federal statute prohibiting gender discrimination may prohibit discrimination based on gender identity. The American Civil Liberties Union, which is representing Schroer, has information on the case on its website.

Judge Robertson's opinion is unusual because it seems to follow a different legal path from other courts holding that gender identity discrimination is prohibited by the federal sex discrimination law. Until 2001 (when Doe v. United Financial was decided), the federal courts had consistently ruled that discrimination because of "changing sex" is not discrimination based on sex. In 2004, the Sixth Circuit Court of Appeals was the first federal appeals court to rule in favor of a transgender plaintiff, in Smith v. City of Salem, and then again in Barnes v. Cincinnati.

As I discussed in a second post on the ruling two years ago, Judge Robertson, however, did not base his ruling on the idea that discrimination against transgender persons is a version of forbidden "sex stereotyping", as in Smith and Barnes. Rather, he stated that sex may not be "a cut-and-dried matter of chromosomes" and may require an understanding of "the factual complexities that underlie human sexual identity. These complexities stem from real variations in how the different components of biological sexuality—chromosomal, gonadal, hormonal, and neurological—interact with each other and in turn with social, psychological, and legal conceptions of gender." You can read his opinion here.

I'm not sure I like Judge Robertson's reasoning, though I like his decision. His ruling seems to undermine the reasoning used in Smith and Barnes, and to agree with district courts in Utah and Louisiana (the Etsitty and Oiler cases) that refused to protect transgender employees. He says that transgender employees are not protected by "sex stereotyping" lawsuits if they have a "sexual identity" issue. He does not explain what he means by this. He also says that transgender employees are protected by "sex stereotyping" lawsuits if they are an effeminate man or a macho woman, but not if they are a man wearing a dress and makeup.

Judge Robertson's opinion harks back to Judge Grady's 1983 lower court ruling in Ulane. In that opinion, Judge Grady said that Title VII includes transsexuals, but not transvestites, because the former have a "sexual identity" issue, whereas as the latter do not. This reasoning has been abandoned to the legal graveyard since the 7th Circuit reversed Judge Grady on appeal in 1984.

Personally, I have a sense that this type of reasoning ought to remain in the legal graveyard. This rule is too open to manipulation because of the ambiguity of the terms involved. No one knows where "sexual identity" ends and "gender identity" begins. No one can authoritatively distinguish between "transgender," "transsexual," "transvestite," "crossdresser," and "genderqueer" by a physical examination. In a Judge Robertson world, it is difficult to figure out who's covered and who's not. His ruling says that Title VII covers someone with a "sexual identity" issue. Does that mean the person must have (or intend to have) sex reassignment surgery? Does it protect someone who transitions to living as another sex without intending to undergo such surgery?

At the same time, Judge Robertson explicitly contradicts himself when he states that transgender employees are protected from firing based on sex stereotyping if they are effeminate males or macho females. Thus, an effeminate male-to-female transsexual or transvestite is protected, as is a stereotype-grinding genderqueer, or a masculine female-to-male transsexual or transvestite. But a masculine male-to-female transsexual or transvestite, or a feminine female-to-male transsexual or transvestite is not covered.

I also think it's very important to note that the EEOC has issued a memo stating that it now considers discrimination based on transgender identity to be a violation of federal law in some instances.

I found Judge Robertson's history very interesing. As reported in Wikipedia, James Robertson (born 1938) was appointed a United States District Judge by President Bill Clinton in 1994. Chief Justice William Rehnquist later placed him on the Foreign Intelligence Surveillance Court. On December 20, 2005, Judge Robertson resigned his Foreign Intelligence Surveillance Court position.

After graduating from Western Reserve Academy in Hudson, Ohio, he graduated from Princeton University in 1959 and received an LL.B. from The George Washington University Law School in 1965 after serving in the U.S. Navy.

From 1965 to 1969, he was in private practice with the law firm of Wilmer, Cutler & Pickering. From 1969 to 1972, Robertson served with the Lawyers' Committee for Civil Rights Under Law, as chief counsel of the Committee’s litigation offices in Jackson, Mississippi, and as director in Washington, D.C. Robertson then returned to private practice with Wilmer, Cutler & Pickering, where he practiced until his appointment to the federal bench. While in private practice, he served as president of the District of Columbia Bar, co-chair of the Lawyers’ Committee for Civil Rights Under Law, and president of Southern Africa Legal Services and Legal Education Project, Inc.

Judge Robertson resigned from the Foreign Intelligence Surveillance Court, sending a letter to United States Chief Justice John G. Roberts announcing his resignation with no explanation. The Washington Post reported the resignation was related to the Bush administration's surveillance of international communications and phone calls sent or received in the United States, without judicial warrants. The disclosure of this classified program to the New York Times' is being investigated by the United States Department of Justice.

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