You go, Diane!

[tahnan]

In case you missed it, amidst the news of Nashville running out of gas and $700 billion dollar bailouts and so forth, Diane (née David) Schroer won a federal anti-discrimination lawsuit.

There's little if any question why she wasn't given the job: "...after a 'long, restless night' [potential boss Charlotte Preece] had decided that 'for the good of the service,' Schroer would not be a 'good fit' given the 'circumstances that [they] spoke of yesterday'". The decision is here. It's fascinating reading; for one thing, it makes it perfectly clear to me just how wrongly Preece acted. Preece gives five concerns about why Schroer being transgendered would be a problem, and some almost sound legitimate, except that they turn out to have no factual basis (e.g., she feared that Schroer's security clearance only applied to David Schroer and that Diane Schroer wouldn't have clearance, which Schroer could have told her was not the case if Preece had bothered to ask); indeed, the judge goes through them one by one, explaining how he found each to be mere pretext.

After some discusson of whether there was a Price Waterhouse discrimination (i.e., discrimination based on failing to conform to gender stereotypes) and noting that there was, Judge Robertson goes on to say:

Imagine that an employee is fired because she converts from Christianity to Judaism. Imagine too that her employer testifies that he harbors no bias toward either Christians or Jews but only "converts." That would be a clear case of discrimination "because of religion." No court would take seriously the notion that "converts" are not covered by the statute. Discrimination "because of religion" easily encompasses discrimination because of a change of religion. But in cases where the plaintiff has changed her sex, and faces discrimination because of the decision to stop presenting as a man and to start appearing as a woman, courts have traditionally carved such persons out of the statute by concluding that "transsexuality" is unprotected by Title VII. In other words, courts have allowed their focus on the label "transsexual" to blind them to the statutory language itself.

[...]

Even if the decisions that define the word "sex" in Title VII as referring only to anatomical or chromosomal sex are still good law -- after that approach "has been eviscerated by Price Waterhouse," Smith, 378 F.3d at 573 -- the Library's refusal to hire Schroer after being advised that she planned to change her anatomical sex by undergoing sex reassignment surgery was literally discrimination "because of . . . sex."

Which is to say: Schroer's claim was valid not only because of some of the particular details, but because Title VII must be read as applying to transsexuals. Fantastic.

Comments

[davidglasser.livejournal.com]

That is pretty excellent. Thanks for digging out that quote: it's a keeper.

[lsl.livejournal.com]

Awesome outcome and that's a great analogy.

[lilisonna.livejournal.com]

Yay, good news!

[ellinor.livejournal.com]

This is a great result, particularly since several states have gases holding directly to the contrary. Hooray for progress!

[srl.livejournal.com]

This is stunningly good news. Perhaps now a federal court will overturn Jesperson v. Harrah's....

[tahnan.livejournal.com]

Robertson specifically cites Jesperson, as it happens. The decision in Jesperson was that "the 'Personal Best' policy imposed equally burdensome, although gender-differentiated, standards on men and women" (quoted from this decision). (Side note: I find that disingenuous at best, since I don't know that it's equally burdensome to require that women wear makeup and to require that men not wear makeup.) The argument from Schroer, which Robertson agrees with, is that she need not demonstrate that there was a general policy that bore unequally on both [sic] sexes; but that the sex-stereotype views directly affecting her hiring are sufficient for a Title VII claim, regardless of other policies.

Which is to say that this case can't serve as much of a basis to overturn Jesperson. But yes: perhaps this heralds a new era of judicial sanity.

(Again, what makes me particularly happy is that, as with the SJC in Massachusetts, there's no "legislating from the bench"; the decision makes it clear that the current law, as written, guarantees these rights.)