There was no immediate reaction from the library, which had claimed at trial that transgender people are not covered under federal anti-discrimination laws.
Unfortunately, that's been the historical interpretation: that "sex" (with regard to anti-discrimination laws) refers only to being male or female, and does not include the concepts of one's sex/gender identity and the presentation thereof, transsexualism, transgenderism, androgyny, etc. (see Ulane v. Eastern Airlines and Etsitty v. Utah Transit Authority). That's why explicit language (such as "sexual orientation," "gender identity") is considered necessary in such laws, even though "sex" should cover all of the above (as far as I'm concerned). It's refreshing to see this type of logical interpretation from U.S. District Court Judge James Robinson, especially when the decision points out the "legislating from the bench" of past decisions, which set bad precedent. Excerpts from the court document: Sex vs. Sexuality... Schroer’s second legal theory is that, because gender identity is a component of sex, discrimination on the basis of gender identity is sex discrimination. In support of this contention, Schroer adduced the testimony of Dr. Walter Bockting, a tenured associate professor at the University of Minnesota Medical School who specializes in gender identity disorders. Dr. Bockting testified that it has long been accepted in the relevant scientific community that there are nine factors that constitute a person’s sex. One of these factors is gender identity, which Dr. Bockting defined as one’s personal sense of being male or female.7 Tr. at 210. The Library adduced the testimony of Dr. Chester Schmidt, a professor of psychiatry at the Johns Hopkins University School of Medicine and also an expert in gender identity disorders. Dr. Schmidt disagreed with Dr. Bockting’s view of the prevailing scientific consensus and testified that he and his colleagues regard gender identity as a component of “sexuality” rather than “sex.” According to Dr. Schmidt, “sex” is made up of a number of facets, each of which has a determined biologic etiology. Dr. Schmidt does not believe that gender identity has a single, fixed etiology. Tr. at 372, 400-04.
To be fair, this is still being debated today, but based on my research over the years, the current majority opinion seems to be with Dr. Bockting. However, I don't necessarily consider the two explanations to be mutually exclusive. Transgenderism is a broad concept, and I think there are various reasons why some individuals don't neatly fit into the categories of male and female. Here's the key aspect (for me) of Robinson's reasoning... 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.
The decisions holding that Title VII only prohibits discrimination against men because they are men, and discrimination against women because they are women, represent an elevation of “judge-supposed legislative intent over clear statutory text.” Zuni Pub. Sch. Dist. No. 89 v. Dep’t of Educ., 127 S. Ct. 1534, 1551 (2007) (Scalia, J., dissenting).8 In their holdings that discrimination based on changing one’s sex is not discrimination because of sex, Ulane, Holloway, and Etsitty essentially reason “that a thing may be within the letter of the statute and yet not within the statute, because not within its spirit, nor within the intention of its makers.” Church of the Holy Trinity v. United States, 143 U.S. 457, 459 (1892). This is no longer a tenable approach to statutory construction. See Public Citizen v. United States Dep't of Justice, 491 U.S. 440, 473 (1989) (Kennedy, J., concurring). Supreme Court decisions subsequent to Ulane and Holloway have applied Title VII in ways Congress could not have contemplated. As Justice Scalia wrote for a unanimous court: Male-on-male sexual harassment in the
workplace was assuredly not the principal
evil Congress was concerned with when it
enacted Title VII. But statutory
prohibitions often go beyond the principal
evil to cover reasonably comparable evils,
and it is ultimately the provisions of our
laws rather than the principal concerns of
our legislators by which we are governed.
You tell 'em, Antonin! Robinson's conclusion... In refusing to hire Diane Schroer because her appearance and background did not comport with the decisionmaker’s sex stereotypes about how men and women should act and appear, and in response to Schroer’s decision to transition, legally, culturally, and physically, from male to female, the Library of Congress violated Title VII’s prohibition on sex discrimination. The Clerk is directed to set a conference to discuss and schedule the remedial phase of this case.
RE: Transsexual wins lawsuit against Library of Congress |
