Nan Hunter

Court rules that Title VII prohibits gender identity discrimination

Filed By Nan Hunter | September 20, 2008 3:00 PM | comments

Filed in: Politics, Transgender & Intersex
Tags: anti-discrimination, court decisions, gender identity, Title VII, transgender, workplace discrimination

Yesterday, in the first ever victory directly on this point, the ACLU won a federal court decision holding that discrimination against a transgender person constitutes per se sex discrimination in violation of Title VII. In Schroer v Billington, Judge James Robertson of the U. S. District Court for the District of Columbia ruled that the Library of Congress discriminated against Diane Schroer when it rescinded a job offer to her after Schroer disclosed that she was transitioning from male to female.(Link to text after the jump.)

The most important aspect of the decision is the ruling that discrimination based on gender identity is literally discrimination based on sex. Schorer's lawyers argued, and the judge agreed, that gender identity is a component of sex, and therefore discrimination based on gender identity is sex discrimination. This might sound like a simple proposition, but previous federal courts have "carved [transgender] persons out of the statute by concluding that 'transsexuality' is unprotected by Title VII."

This is a big deal politically as well as legally because it gives new life to the argument that Title VII already --that is, without ENDA -- prohibits discrimination based on gender identity. It was a series of earlier court decisions rejecting that theory - plus the explicit exclusion of transgender persons from the scope of the Americans with Disabilities Act - that left advocates with no option other than to seek explicit protection of gender identity through separate legislation. While Schroer is only one judge's decision and so cannot by itself alter the dynamics of this debate, it will at the least bolster the Title VII argument in future cases, especially if it is upheld on appeal.

Schroer's lawyers litigated the case based on two theories of discrimination, both of which the judge accepted. First, the judge found that there was "compelling evidence that the Library's hiring decision was infected by sex stereotypes." On that basis, Schroer was entitled to relief under the line of cases beginning with Price Waterhouse v. Hopkins,  which created the sex stereotyping doctrine. In that case, the Court found that Title VII was violated when a woman was denied a job after being told to wear make-up and take a course at charm school. Evidence in the Schroer trial established that the negative reaction to Schroer grew out of her not fitting gender stereotypes by virtue of her decision to change genders.

More important was the second theory: that discrimination based on gender transition should be considered a form of discrimination based on sex. The Schroer court held that just as discrimination against converts from one to faith to another is still discrimination based on religion, so too discrimination against transgender persons is still sex discrimination. Although doubtless Congress did not have transgender persons in mind when Title VII was enacted in 1964, the court found that the plain text of the statute covers this situation.

Although the Schroer decision is an enormous breakthrough in the law, the caveat is that it is a trial-level court decision. The Justice Department (which represents all federal agencies in court) is likely to appeal it. It's impossible to predict what the outcome of the appeal will be.  One cause for optimism is that the decision is based on a full factual record, including expert testimony on the key issue of gender identity being considered a component of sex. (Trial described in previous posts here and here.) That will make it more difficult (though not impossible) for the court of appeals to reverse it.  Also, because the case does not involve a challenge to the validity of a federal statute, but only to the lawfulness of one hiring decision, the Justice Department could elect not to appeal (perhaps under a Democratic administration?).

ENDA played a role in the case because the Justice Department argued that its passage last year by the House of Representatives without gender identity protection signaled congressional intent not to protect transgender persons. Maybe, said Judge Robertson, or maybe Congress believes that Title VII, properly interpreted, solves the problem. In any event, the language of Title VII settled the question for him. This issue, too, of the legal consequence, if any, of the House vote last year could be re-argued if there is an appeal.

Full decision here:

Schroer v Billington.pdf

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Brynn Craffey Brynn Craffey | September 20, 2008 5:52 PM

Thanks for posting about this, Nan!

Interestingly, in Ireland--where I have dual citizenship and have an employment discrimination case slowly winding its way through the system--protection for transgender people is subsumed under the "gender" category in the law. Which, I think (though I'm not a lawyer) would be equivalent to what you're saying here.

It still doesn't take barney and other GLB people off the hook for standing by while we got cut out of ENDA.

When it is reintroduced, irregardless of how the Schorer case progresses, we need to be codified into an inclusive ENDA period.

As a veteran, I can say that all of us at TAVA are very excited on this ruling. However, we have to proceed with caution. Barney could actually use this against us by saying that since transgender people are covered by Title VII, we don't need to be in ENDA. This is total bullshit. It would mean that EVERY transgender discrimination case (in unprotected states) would have to go to court to be settled, while many sexual orientation cases would be rather easy under ENDA.

There have been a few other cases won under Title VII, but there are many that have not. It depends on the federal district the case is in. Some districts would see it one way, and others will see it another. Monica Roberts is correct. Barney is not off the hook, because Title VII is not as clear cut as ENDA would be.

I'm not sure I follow your reasoning about going to court. Once ENDA passes discrimination complaints will still have to be proved. That is still going to necessitate a hearing (administrative or civil). And since most of what I've read suggests that ENDA has been pretty well gutted, does Title VII have more teeth?

Companies like ADT publish human resources and staffing bulletins. There should be opinions from HR experts on this in the next few weeks. It will be interesting to see what they have to say on the subject.

There is no difference between Title VII and ENDA as to the need to file complaints or go to court to secure relief.

If it were clearly established that gender identity discrimination is protected under Title VII, it is correct that its coverage under ENDA would be unnecessary. However, as my summary indicated, that principle is far from clearly established. Achieving that goal will require a Supreme Court decision affirming the ruling in this or a similar case.

If that happens, we certainly shouldn't reject it - that would be a tremendous victory. I am hopeful, however, that we will be able to get a fully-inclusive ENDA through Congress in a shorter time than it will take for the Schroer case to reach the Supreme Court (assuming that it is appealed, etc.) The smartest strategy is to pursue both tracks.

Robert Ganshorn Robert Ganshorn | September 21, 2008 7:17 AM

One extra straw to break the camel's back. Thank you for this report.

I am basking in the warm glow of justice and gratitude.

Nerissa Belcher | September 21, 2008 8:55 AM

I think the court decision is great. However, I also think almost everyone is missing the real problem. Which is employees and potential employees have almost no rights in the USA. We have went way overboard in protecting the rights of employers. Even to include employers who are funded by tax payers.

No person, TS or otherwise, should be allowed to be turned down for a job after having been approved for it for any reason short of business failure or malfeasance on the part of the applicant. Likewise our fire at will approach in most areas is no longer viable in such a bad economy. Additionally there should be major penalties for employers who falsify information to justify firing people. I'm in Georgia and in this state employers freely falsify information since no objective evidence is required. No doubt many other places are the same.

If employers don't like new employee friendly policies I say let them close down. There are plenty of people wanting to run businesses that would treat employees better if USA policy encouraged it. Right now they can't afford to do so since it is hard to compete against businesses that treat employees like dirt.

Congrats to all of the trans-community and especially to the Colonel.
I was part of the party in NYC that celebrated the Tronetti v TLC win back in 03, I think. I met her that evening.


Please correct me but I believe the Supremes ruled against Ann Hopkins. The issue was who is required to prove what and with what evidentiary standard, but my sense is that, in spite of Congress' amendment of the Civil Rights Act in 1991 it is still legal to discriminate on the basis of sex stereotyping.

I also think that it is important to have this appealed to the Court of Appeals, to make it law of the land. Right now it's just one District Court judge's opinion, though a very well reasoned one.

But I'm not a lawyer, even though I play one on YouTube.

"I also think that it is important to have this appealed to the Court of Appeals, to make it law of the land. Right now it's just one District Court judge's opinion, though a very well reasoned one."

The Court of Appeals may very well throw out the opinion, and it wouldn't be the law of anywhere. It's a crapshoot. Even if the Court of Appeals upholds the District Court's opinion, it would only have precedent within that District, not nationwide.

Every federal judge appointed in the last eight years is a conservative Republican. It's not just the Supreme Court that is effected by the presidential elections.

No - it is NOT legal to discriminate based on sex stereotypes. In the Price Waterhouse case, the Supreme Court did reject Hopkins' argument re the burden of proof, i.e. that the defendant had to meet a higher than normal standard in showing that sex stereotyping played no role in the decision. But the Supreme Court ACCEPTED the argument that sex stereotyping constituted a violation of Title VII.

The Price Waterhouse case was remanded for the lower courts to apply the normal standard of proof. On remand, though, Hopkins won again. The case ended with a decision that granted her back pay and ordered her promotion to partner. (920 F.2d 967) So she definitely won that case, and established the sex stereotyping theory of sex discrimination.

In the years since, the 1st, 3d, 6th, 7th, 9th and 10th circuits (federal courts of appeal)have all followed Price Waterhouse in cases alleging sex discrimination based on stereotypes. Most important for this discussion, the 6th Circuit has ruled in two cases that the theory applies to a transgender plaintiff: the Smith and Barnes cases (both cited in the Schroer decision).

There are also cases that reject the sex discrimination argument for transgender plaintiffs, but many of them are quite old. The ones, such as Ulane, that pre-date Price Waterhouse are arguably pretty worthless as precedent. The law is still developing on this point, and won't be finally resolved until there is a Supreme Court decision.

Bottom line - the sex stereotyping theory is alive and well. Conservative judges can give plaintiffs a hard time no matter which law they are suing under, but we could speculate all day about good laws that conservative judges would like to cut back. And of course there is no guarantee that courts will continue to expand the rights of transgender plaintiffs under Title VII. But the Schroer case, together with the two cases from the 6th Circuit Court of Appeals, are immensely heartening.

Thanks for the clarification, Nan.

It's these little things that build up slowly and set the way forward a little more solid.

I'm curious though, Nan. Which do you think would provide the most complete coverage? ENDA or Title VII?

This is a very good question, and I think that people will have different preferences for a variety of reasons. In my view, neither choice is so clearly correct that it should not be open to re-evaluation as future developments unfold, based on what seems like the best chance for success. I think it's a big mistake to commit to one strategy come hell or high water. I would be quite happy to win with either. That, I think, is the single most important point.

In general, it’s very difficult to compare an already-existing law with legislation that still could be altered before its enactment. However, assuming that ENDA passes in the form in which it passed the House in 2007, with the only change being that gender identity is also protected as it was in the original bill --

The court procedures, possible remedies, EEOC processing, time deadlines, etc would be exactly the same for ENDA as for Title VII. The employers covered under the two would be the same (minimum of 15 employees, no coverage of military servicemembers).

The scope of the religious exemption is better for plaintiffs under Title VII than it would be under ENDA. Under Title VII, certain religious organizations are allowed to discriminate based on religion, but not based on sex. Under ENDA, the same religious organizations would be allowed to discriminate based on sex/o and GI.

Title VII covers both disparate treatment and disparate impact forms of discrimination, while ENDA would cover only the former. On the other hand, there is a BFOQ (bona fide occupational qualification) defense available to employers sued for sex discrimination that is not included in ENDA.

The strongest point of ENDA is that the unpassed version includes provisions for "certain shared facilities" (bathrooms, etc) and "dress and grooming standards" that would establish the ground rules for cases involving those issues. This could be thought of as providing for a form of reasonable accommodation, which Title VII doesn't have. (Of course, I am assuming that these provisions would not be altered in a future trans-inclusive version of the bill.)

Another strong point of Title VII is that it has a large body of case law already built up, and judges are accustomed to adjudicating Title VII cases. It will take a while for them to get used to ENDA cases, although they will, so the differential will fade with time.

Politically, I think that our chances of securing protection for trans people, the debacle last year notwithstanding, are stronger with the Dem leadership in Congress and an Obama presidency than with the current Supreme Court. But right now, the outcome of the 2008 election looks uncertain.

"ENDA played a role in the case because the Justice Department argued that its passage last year by the House of Representatives without gender identity protection signaled congressional intent not to protect transgender persons."

That should definitely be brought to Barney's attention. It's one thing to be neglectful, but if the court bought the Justice Department's argument, the non-inclusive ENDA would have been actively discriminatory. That might be the Bridge Too Far for Frank.

I'd like to think that the court's interest in protecting trans people from employment discrimination would persuade the Congress that this is a legitimate government interest, and therefore pass the inclusive bill.

I saw a statement from Barney Frank saying that he has officially asked the Librarian of Congress to not appeal the decision. Does he have any say in the matter? I got the impression from this post that it's up to the Justice Department to decide that.

The situation is that the Justice Department is the lawyer and the Library of Congress is the client. Normally, any client agency that has lost a case will want to appeal. The typical dynamic is that the Justice Department evaluates whether there are reasons not to appeal, and notifies the agency of what it plans to do. In 99% of the cases, there is no disagreement between the agency/client and the Justice Department, and the decision is effectively made by the Justice Department.

However, the client COULD decide for its own reasons that it does not want to appeal. So Barney's move was a good one.