Rebecca Juro

Col. Diane Schroer Awarded Half A Million In Anti-Discrimination Ruling

Filed By Rebecca Juro | May 02, 2009 10:00 AM | comments

Filed in: Politics, Politics, Transgender & Intersex
Tags: anti-discrimination, Diane Schroer, federal law, transgender

Colonel Diane Schroer had an offer of a job at the Library of Congress rescinded when the person who was hiring her learned that she planned to transition from male to female. Schroer successfully sued the government for damages for discrimination based on sex, and has now been awarded nearly half a million dollars in back pay, emotional suffering, and out-of-pocket expenses.

The decision is significant not only because the judge found that Col. Schroer, as a transgender person, was, in fact, protected by existing federal anti-discrimination law, but because the court's rationale in making this decision struck so neatly and directly to the heart of the issue.

I'm no lawyer (and I hope those who are will speak to this in the comments), but this quote in particular strikes me as a major step forward from where the federal courts have traditionally come down on protections for transgender people:

"Imagine that an employee is fired because she converts from Christianity to Judaism. Imagine too that her employer testified 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."

From a layman's perspective, it seems that if this rationale becomes accepted precedent in deciding discrimination cases involving transpeople as discrimination based on sex it could literally make all the difference in future decisions. It seems crystal-clear in its logic and utterly basic in its application to the relevant law. Most importantly perhaps, there are no arcane legal complexities to be parsed and debated here. The court's position here is so clear and easy to understand that a child could grasp it.

Even more, imagine if this principle were applied in all jurisdictions where anti-discrimination protections which cover sex but not gender identity are already on the books. For transpeople seeking justice in the workplace, it might just be a game-changer.

Congratulations to Colonel Schroer on her victory and for her invaluable contributions to the cause of transgender equality. Congratulations also to the ALCU, which argued this case on Colonel Schroer's behalf and have helped to push the bar another step closer to full equality for all Americans.

It's a great day for justice, a great day for the cause of equality for all, and a great day for transgender Americans. And maybe, just maybe, a great step toward our future as truly equal citizens of the United States of America.

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And a great day for transgender veterans.

Absolutely! The court decision not only honored Col. Schroer's humanity and citizenship but also her career of service to our country.

From an even more recent case though, it will be possible to fire a TS woman over "safety concerns" by employees.

That's in addition to firing them for not adhering to a male dress code, or because of fears of legal liability should they be seen using a public toilet of either sex - regardless of the fact that no such liability exists.

Hopefully ENDA will address that, Zoe. I'm sure there are plenty of holes in whatever protection we may get from Title VII. It's my hope that ENDA will plug most of them.

Unfortunately not - ENDA is weaker than Title VII. We need to go for explicit inclusion in Title VII as a suspect class, or all of those cases will still stand.
It's a matter of "strict scrutiny", to use the legal term.
If the LOC's excuses hadn't been so obviously transparent, they may have won, and *would* have won in many Federal Circuits. Even the thinnest of excuses has been accepted in the past.

For example, the fact that the LOC stated that they had "concerns" about Col Schroer's security clearance, but didn't bother to check whether those concerns were valid, was seen as a mere pretext.

The same sort of thing was accepted as a reasonable excuse in Ettsity vs Utah Public transport, where the UPT had "concerns" about legal liability in the use of public facilities, but didn't bother to check whether those concerns were valid.

In Kastl v. Maricopa Community College, it was held that other staff feeling unsafe around a transgendered person was an adequate excuse. Imagine how the Civil Rights Act 1964 would have been circumvented if any employer could just refuse to hire Blacks if some employees didn't feel safe around N*ggers.

ENDA - assuming it becomes trans-inclusive - would do nothing to help in either case.

Nerissa Belcher | May 3, 2009 3:42 AM

I agree with Zoe's comments. We need Title VII level protection to limit the right of transphobic bigots to fire us.

An additional concern in the USA is employees have almost no rights. The rest of the civilized world looks on in awe at how poorly employers can treat employees with social and legal approval. This being the case whether the employee is trans, straight, gay, Black, White, Hispanic, male, female, etc. One example of this is there are almost no requirements for proof of claims employers make against fired employees. Particularly when nebulous BS like "bad attitude" is used as an excuse to fire someone. There are also only rewards to employers who fire large groups of employees to make more money for shareholders.

Traditionally employees in the USA have put up with abuse due to being brain-washed from childhood in the belief in "The American Dream." I.E. work hard and we'll be rewarded. Someday, maybe, if our economy stays strong, if we're not taxed to death, if our job is not out-sourced, if we have a good run of bosses who are in our favor, if our health holds up for three or four decades, if our company doesn't lay us off, if we give up vacation time for decades, if we're willing to fight traffic for decades, if we ignore our families needs in favor of our employers, etc.

I say we re-write the American Dream to help all people have a decent quality of life with a reasonable amount of job security for people willing to do their job well.

Congrats to Colonel Schroer!

As for Title VII, my friend Cai might be a source of info; she fought for the right to sue under Title VII

See? I knew it would be smart to specifically mention that I'm not a lawyer because I'd undoubtedly prove that to be the case at some point.

I wonder though: What does everyone think of the prospects of the court's rationale in deciding this case becoming accepted precident?

IANAL - but having seen some outrageous court decisions when it comes to TS issues, then my bet is that it will in some circuits, and won't in others.

Until the Supremes rule one way or the other, we will continue to have genuine clashes between federal circuits on very basic issues.