Judge Allows Transsexual Discrimination Case Against LOC to Move Forward

Posted November 29, 2007 at 11:22am

Diane Schroer, the male-to-female transsexual who sued the Library of Congress for discrimination in June 2005, will get her day in court.

A federal judge on Wednesday denied a motion by the Library to dismiss Schroer’s lawsuit, which alleges LOC officials rescinded a job offer to Schroer to become a senior terrorism researcher because she was in the process of gender transitioning.

“She’s very excited obviously to receive this ruling, but also excited that we are able to continue on,” said Sharon McGowan, who is representing Schroer in her role as a staff attorney with the American Civil Liberties Union. “Her position has always been that she wants to serve.”

In a statement, the Library said that it will review the ruling alongside the U.S. attorney’s office, which is representing the LOC in the case.

“The Court has not yet reached the merits of the case and there has been no finding of discrimination by the Library,” the statement reads. “As a general matter of course, however, the Library does not discuss matters pending in litigation.”

During a more than two-decade stint in the Army, Schroer served as a Special Forces officer specializing in terrorism. She reached the rank of colonel and earned several medals for her service before she retired on Jan. 1, 2004.

In October 2004, Schroer applied for and was offered a position as a senior terrorism research analyst at the Congressional Research Service, which is overseen by the LOC.

At the time, she was still functioning as a man under her birth name, David John Schroer. She applied under the male name and went through the application and interview process dressed in traditionally masculine attire, according to her complaint.

After Schroer was offered the job, she took her future boss to lunch to tell her she was transitioning to female, according to the complaint. The next day, the boss called to rescind the job offer, telling Schroer that she would not be a “good fit” for the position, the complaint reads.

Schroer filed her discrimination lawsuit in June 2005, alleging her rights had been violated under Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on race, color, religion, sex and nationality.

The Library filed a motion to dismiss the case in 2005, arguing that transgender workers are not protected under Title VII. But James Robertson, a judge with the U.S. District Court for the District of Columbia, rejected that argument Wednesday.

In his ruling, Robertson wrote that “Title VII is violated when an employer discriminates against any employee, transsexual or not, because he or she has failed to act or appear sufficiently masculine or feminine enough for an employer.”

But in its statement, the Library noted that while the judge allowed the sex discrimination allegation to move forward, it also dismissed other counts brought forth in the complaint, including that the Library violated the due process and equal protection clauses under the Fifth Amendment.

Nevertheless, Schroer said she was pleased with the court’s decision.

“After putting my life on the line for my country for 25 years, I couldn’t believe that I could be refused a job that I was told I was the most qualified for solely because I happened to be transgender,” Schroer said in a statement. “But [the] decision makes me proud that I served a country that values equality and fairness.”

The case now returns to the discovery phase, McGowan said, adding that a status conference is expected to be scheduled soon.

“I am extremely optimistic, certainly as far as the facts of what happened,” McGowan said. “The unfairness of what happened to Diane, I think that we have a slam-dunk case. … It just makes sense to think about what happened here as a kind of sex discrimination.”

Schroer now works as an independent consultant on terrorism issues, McGowan said, explaining that in the end, all she wants to do is serve her country.

“We’re just really pleased,” McGowan said. “We think that this is really a thoughtful and important milestone.”