LOC Seeks Dismissal of Transsexual’s Suit

Posted August 5, 2005 at 5:18pm

In an expected opening move, lawyers for the U.S. Attorney’s Office last week asked a federal judge to dismiss a suit that could force the U.S. District Court to take a hard look at how sexual discrimination laws apply to the Congressional workplace.

Diane Schroer, a 25-year Army veteran and transitioning male-to-female transsexual, filed suit against the Library of Congress in June after being rejected for a position as a terrorism and international crime research analyst with the Congressional Research Service, a division of the LOC.

Born David John, Schroer applied for the post in August 2004. In her suit, she alleged that though she was initially offered the position, Library officials later rescinded the offer and refused to hire her because she did not conform to gender stereotypes as she began the medical process of transitioning to a female.

Schroer brought the case under Title VII of the Civil Rights Act of 1964 — which prohibits employment discrimination based on race, color, religion, sex and national origin — but lawyers for the Library argued in their response last week that transsexual individuals are not considered members “of a ‘protected class’ as required by Title VII” and thus the case should be dismissed.

“The term ‘sex,’ as used in Title VII, prohibits discrimination based on the biological state of a male or female,” the brief read. “District Courts in this Circuit, as well as in many other circuits, have never held that transsexuals are a protected group under Title VII.”

The brief went on to argue that applying Title VII to transsexuals would create an improper precedent in the workplace.

“While some courts attempt to grant transsexuals protection under Title VII by circumventing the protected-class requirement … applying the gender nonconformity argument to transsexuals creates a slippery slope and requires ‘a complete rejection of sex-related conventions … never contemplated by the drafters of Title VII,’” the argument read. “Thus everything associated with specific sex (e.g., dress codes or separate restrooms) would have to be eliminated in the workplace; if an employer allows a transsexual to flout the rules, then it must also allow non-transsexuals to do the same.”

“This is entirely unsurprising,” said Arthur Spitzer, a lawyer with the American Civil Liberties Union who is representing Schroer. “We expected them to disagree with this. … We think she’s still covered under Title VII because we think what was done to her was sex discrimination.”

When Schroer initially interviewed for the job at CRS in October 2004, the name on her application was David J. Schroer and she dressed in traditionally masculine attire. Schroer — a retired colonel who served in the Rangers, earned several medals for distinguished service, and fought in the war on terror as a member of the Special Operations Command — claims she was told she was the most qualified candidate for the analyst position. She argues that by December the Library had offered her the job and was happy to employ her as a man, however, Library officials then changed their mind when Schroer informed them that she was under a doctor’s care for gender dysphoria and that, in accordance to her doctor’s instructions, she would begin using a feminine name and presenting a traditional female appearance by the time she started work as a research analyst.

“When she was David she was a good employee, and when she was Diane she was no longer a good employee,” Spitzer said.

Schroer has also argued in this case that Library officials’ actions violated her rights to due process and to equal protection of the law under the Fifth Amendment, and that the LOC violated the Library of Congress Act in the U.S. Code.

As both sides continue to file response briefs and preliminary motions, Spitzer said a decision by Judge James Robertson to dismiss or move forward with the case probably will not come until this fall.