Schroer v. Library of Congress – Transgender Sexual Harassment
I was lucky enough to write a brief during the spring semester in Professor Basas’s Legal Writing class about whether a Title VII prohibits harassment against a biological male who is transitioning to living as a woman. The legal arguments supporting coverage are interesting, ranging from interpretation of the legislative history of the 1964 Civil Rights Act, the definition of the phrase “because of sex” in Title VII’s prohibition on discrimination because of sex, and clarifying the line between sex discrimination and gender discrimination.
The ACLU, who is representing plaintiff Diane Schroer in a lawsuit against the Library of Congress, has published an excellent blog post that tells the story. Although the Sixth Circuit in Smith v. City of Salem is responsible for the most progressive and comprehensive coverage of transgender rights, Schroer’s seems like a great test case for extending coverage.
Starting a new life and searching for a new career isn’t easy, but Diane Schroer, a highly-decorated veteran, is no stranger to a challenge.
Schroer was an Airborne Ranger qualified Special Forces officer who completed over 450 parachute jumps, received numerous decorations including the Defense Superior Service Medal, and was hand-picked to head up a classified national security operation. She began taking steps to transition from male to female shortly after retiring as a Colonel after 25 years of distinguished service in the Army.
When she interviewed for a job as a terrorism research analyst at the Library of Congress, she thought she’d found the perfect fit, given her background and 16,000-volume home library collection on military history, the art of war, international relations and political philosophy. Schroer accepted the position, but when she told her future supervisor that she was in the process of gender transition, they rescinded the job offer. The ACLU is now representing her in a Title VII sex discrimination lawsuit against the Library of Congress.
As a critic of originalist arguments, I enjoyed this characterization of using a narrow legislative history/purpose to deny coverage (from the blog).
Science doesn’t matter, the Library insists, it’s what Congress was thinking of when it passed the 1964 Civil Rights Act. “Everett Dirksen,” a reporter said to me in the hall outside Court, “wasn’t thinking of Diane Schroer when he helped pass the Civil Rights Act.” “Probably true,” I said as she headed off to meet her cameraman, “but James Madison wasn’t thinking of TV when he penned the First Amendment either.”
The issue isn’t the way someone who wrote or voted for a law was thinking it would apply; the issue is the concept embodied in the law. What was the idea? The flip answer is that on this point, Congress didn’t have an idea; many of those who voted to put sex into the 1964 Civil Rights Act were hoping it would kill the bill.
I am excited to see how this suit turns out; it has the potential to dramatically impact Title VII cases, employer liability, and shift public opinion toward recognizing transgender equality.
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