Dec 07, 2007  |  By: LOU CHIBBARO J  | COMMENTS     

A federal judge last week denied a motion to dismiss a lawsuit charging that the Library of Congress engaged in sex discrimination by refusing to hire a transgender woman as an anti-terrorism expert despite her recognized qualifications for the job.

United States District Court Judge James Robertson ruled that former U.S. Army Special Forces Officer Diane Schroer has legal grounds to file a sex discrimination claim against the library under Title VII of the U.S. Civil Rights Act of 1964.

“Title VII is violated when an employer discriminates against any employee, transsexual or not, because he or she had failed to act or appear sufficiently masculine or feminine enough for an employer,” Robertson stated in a 14-page decision.

In August 2004, Schroer, a 25-year Army veteran, accepted an offer from the Library of Congress’s Congressional Research Service for a position as a senior terrorism research analyst after completing an application and interview process.

Schroer applied for the position under her former male name and appeared for her interview in male clothing. During a meeting with CRS official Charlotte Preece following the division’s decision to hire her, Schroer revealed that she was transitioning into a woman and would begin her job using her new name and as a woman dressed in traditional female attire.

Schroer’s lawsuit states that on the following day, Preece informed Schroer by phone that library officials decided Schroer would not be a “good fit” for the job, based on the information revealing her change of gender. Preece told her then that the job offer had been rescinded, the lawsuit states.

Prior to filing her lawsuit, Schroer filed an administrative complaint with the library’s Equal Employment Office alleging sex discrimination under Title VII of the civil rights law. The EEO office denied her complaint, prompting her to file the lawsuit.

Government attorneys representing the Library of Congress argued that Title VII does not apply to transgender persons, saying the statute’s ban against gender discrimination pertains only to a person’s “chromosomal configuration” as a biological male or female.

Robertson rejected that assertion, stating in his decision, “It is well-established that, as a legal concept, ‘sex’ as used in Title VII refers to much more than which chromosomes a person has.”

Robertson’s decision denying the library’s motion to dismiss the entire case allows Schroer’s lawsuit to go forward, with a trial expected to begin sometime in 2008 on the question of whether the library based its decision not to hire her on sex discrimination or improper gender stereotyping.

While ruling that the case can continue, Robertson approved separate motions by the library calling for dismissal of two other claims made by Schroer’s lawsuit — that the library’s refusal to hire her violated her constitutional right to due process and violated the Library of Congress Act.

The act requires that the library make all hiring and other personnel decisions “solely” on the basis of an employee’s fitness to perform his or her duties.

Robertson said the Library of Congress Act did not apply to Schroer’s case because she can seek redress under Title VII. He said previous U.S. Supreme Court rulings held that the type of employment discrimination claim made by Schroer was not covered under the Constitution’s due process clause.

“The important thing is our main claim under Title VII is still alive,” said Sharon McGowan, an American Civil Liberties Union attorney representing Schroer.

“[T]he court sent a very clear message that employers can be held liable when they make decisions about whom to hire based on stereotypical views about gender as opposed to merit,” McGowan said in a statement.

“Employers, including the government, are now on notice that discriminating against transgender workers may land them in court.”

ACLU spokesperson Paul Cates said Robertson’s ruling appears to be one of only a few cases where a court has ruled that discrimination against transgender persons may be prohibited under Title VII of the 1964 Civil Rights Act. He said that while the ruling would not apply to cases outside of the District of Columbia, courts in other jurisdictions would likely took at Robertson’s rationale in linking the civil rights statute to transgender discrimination when considering similar cases.

The Justice Department, whose attorneys are representing the Library of Congress, have the option of appealing Robertson’s ruling to the U.S. Court of Appeals for the District of Columbia if Schroer wins her case in the U.S. ...