Transgender Army Veteran Sues Library of Congress for Discrimination

August 19, 2008 06:03 PM
by Anne Szustek
Retired Col. Diane Schroer claims the national library rescinded a job offer after she disclosed that she was receiving gender therapy.

Trial Begins on Potentially Landmark Employment Case

A federal court in Washington, D.C., is set to start hearings today as to whether the Library of Congress was in violation of legal precedent on sex discrimination when revoking Col. Schroer’s offer of employment.

David Schroer served 25 years in the Army, and was an Airborne Ranger and headed a classified national security operation. The retired officer was recently hired as a senior terrorism research analyst with the Library of Congress.

The day after he accepted the job offer, he told his presumptive boss that he was under professional treatment for gender dysphoria, the medical term for having transgender feelings. Schroer informed his supervisor that he would be changing his name from David to Diane. Schroer would start wearing women’s clothes and would not be undergoing sexual reassignment surgery for at least a year.

Schroer’s offer of employment was later revoked.

U.S. Attorney Jeffrey Taylor, the Library of Congress’ legal representation, contends there were other issues at stake. To take the job, Schroer would have to pass an extensive security clearance, might not be able to keep up her high-level military intelligence connections; and Congress might not consider her a credible researcher.

But American Civil Liberties Union lawyer Sharon M. Gowan stands to differ. Schroer’s legal counsel for the federal case maintains that documents and e-mails show “direct evidence” that the decision to rescind Schroer’s employment was based on discrimination.

Historical Context: Price Waterhouse v. Hopkins; Civil Rights Acts of 1964 and 1991

“This is potentially very significant, partly because the case is against the federal government, which could impact federal employment policy and people all over the country,” Arthur Leonard, New York Law School employment discrimination scholar was quoted as saying in

The federal court case of Schroer v. Billington could lessen the gray areas of the precedent set by the 1989 Supreme Court ruling of Price Waterhouse v. Hopkins. In that court case, Ann Hopkins, a senior accountant at auditor Price Waterhouse, was proposed for promotion to partnership in 1982. Instead of giving a firm rejection or approval, her promotion was listed for consideration the following year. When her colleagues declined to resubmit her for firm partnership, she sued Price Waterhouse in federal court for violation of Title VII of the 1964 Civil Rights Act. The Supreme Court ruled in Hopkins’ favor, and established that sex-role stereotyping may not be used as a basis in making employment decisions.

Some federal courts have since held that Title VII protects transgendered persons from workplace discrimination. U.S. District Judge James Robertson, who is presiding over Schroer v. Billington, rejected the federal government’s motion to dismiss the discrimination lawsuit; however “he left unresolved whether gender identity discrimination alone violates Title VII’s plain language,” writes

Title VII of the Civil Rights Act of 1964
stipulates that it is “an unlawful employment practice for an employment agency to fail or refuse to refer for employment, or otherwise to discriminate against, any individual because of his race, color, religion, sex, or national origin.” The 1991 Civil Rights Act updated the 1964 text to include provisions granting the right to take discrimination cases to trial, and to collect monetary damages for emotional distress.

Less open to interpretation than Title VII and Hopkins v. Price Waterhouse, 12 states and the District of Columbia have laws expressly forbidding employment bias against gender identification. And the Employment Non-Discrimination Act (ENDA), a proposed federal law, would grant protections to gays and lesbians similar to those provided under Title VII.

Opinion & Analysis: The merits of the ENDA

The original version of the ENDA, H.R. 2015, authored by Reps. Barney Frank, D-Mass., Chris Shays, R-Conn., Tammy Baldwin, D-Wis., and Deborah Pryce, R-Ohio, included provisions to protect transgendered persons in addition to gays and lesbians. But after an initial “whip” vote suggested that H.R. 2015 would not pass the House, Frank redrafted another version of the bill, H.R. 3685, that would not include transgendered persons in its text.

The second bill, “GENDA if you will, will move on a separate track and will give the ability for the committee and other lawmakers to hold hearings on it and better educate other lawmakers,” Frank spokesperson Steven Adamske told The Advocate in 2007.

But gay and lesbian groups were not convinced. Some 140 gay and transgendered rights groups called House Speaker Nancy Pelosi, D-Calif., to demand the ENDA retain its protection for transgendered people. “Lesbian, gay and bisexual activists stood alongside their trans sisters and brothers, and together we raised the roof,” writes Los Angeles Times columnist Christine Daniels, who is transgendered. “It was a beautiful noise, let me tell you.”

Related Topic: Los Angeles Times rallies behind transgendered columnist

Christine Daniels realized that she identified as a woman after 23 years as a sportswriter for the Los Angeles Times. Daniels, who previously went by Mike Penner, said that her colleagues at the newspaper had nothing but support for her. She quotes the reaction of her boss, Randy Harvey, when she broke the news to him: “He leaned back in his chair, looked through his office window to scan the newsroom and mused, ‘Well, no one can ever say we don’t have diversity on this staff.’”

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