Saturday, September 20, 2008

More on judgment in Schroer v. LoC

Judge Robertson's fabulous ruling has already been thoroughly blogged at ACLU's Get Busy Get Equal Blog, RH Reality Check, Leonard Link, Feministing and hunter of justice.

I agree with Prof. Hunter that this is "an enormous breakthrough in the law." The decision is not unprecedented legally - several other courts have held that anti-trans discrimination is covered by Title VII - but it is perhaps the most thorough and well-reasoned such decision, and the facts are simple and compelling.

Prof. Leonard notes what is perhaps the most remarkable aspect of the court's reasoning - its analogy to religious discrimination. From the opinion:
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.
This is precisely right, but Robertson is the first judge to latch on to this logic, largely for the reason he states. This analogy makes it much harder to refute Robertson's holding.

Another remarkable thing about the decision is it shows something we rarely get to see: a judge openly changing his mind. Judge Robertson's 2006 ruling refusing to throw out the case expressed reservations about applying the "sex stereotyping" theory to anti-transgender discrimination. Instead, he favored looking at this as a more traditional sex discrimination claim, to the extent Schroer could prove that transsexuality is an aspect of "sex." But, says Robertson now: "That was before the development of the factual record that is now before me." He continues:
Ultimately, I do not think that it matters for purposes of Title VII liability whether the Library withdrew its offer of employment because it perceived Schroer to be an insufficiently masculine man, an insufficiently feminine woman, or an inherently gender-nonconforming transsexual.
Either way it was sex stereotyping, and it was also discrimination directly premised on Schroer's sex. All roads here really do lead to Rome.

On another level, the Schroer judgment reads like a manual for employers on What Not to Do When Dealing with Transgender Workers. Robertson catalogues the baseless assumptions made by Library of Congress staff, and points out how easily they could have been dispelled had any bothered to actually think things through. Robertson also rejects on its face an excuse that wouldn't pass the red-face test in a race or religion case: we can't hire the plaintiff because of other people's discriminatory attitudes.

I'll have more to say soon on the future of this case.

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