Here's a Story About Dave and Diane

Julian Sanchez | April 5, 2006

Last summer, I wrote about the case of Diane (formerly Dave) Schroer, a 26-year Special Forces vet who'd been offered a position as a terrorism analyst at the Library of Congress as Dave, then—just before he was due to start—had it rescinded when he revealed he'd be showing up as a she. Last week, a federal judge issued an opinion ruling that Schroer's discrimination lawsuit against the library, brought with the help of the American Civil Liberties Union, can go forward.

My feelings about the suit were somewhat mixed from the outset. On the one hand, I take it for granted that it's wrong for the government to revoke a job offer on the basis of transgendered status under ordinary circumstances. But the suit was brought under Title VII--which covers private employers as well--on the theory that "sexual stereotyping" is a form of sex discrimination. That argument's based largely on the seminal case of Price Waterhouse v. Hopkins, in which a woman sued her employer because she was denied a promotion at least in part on the grounds that she was regarded as insufficiently "feminine." The Supreme Court held that "sex discrimination" covers not just discrimination against all members of a particular sex, but also discrimination against those who fail to fit the gender stereotypes associated with their sex. And while I'd like Schroer to win, I'd be worried about a victory on that theory generating a precedent that could burden the rights of private employers... maybe (and I'm just making up hypotheticals here) making it "discriminatory" to have different uniforms (dress vs. suit, say) for female and male employees. The ideal scenario would be for Schroer to win on another, more novel argument that her attorneys proposed to me: That there are a line of cases, most famously connected with abortion, establishing a protected sphere of private medical decisions that the government (as opposed to private employers) may not burden. And there's apparently case law to support the notion that denial of a job based on a medical decision in that sphere counts as an undue burden.

The opinion issued last week hits a kind of middle ground. On the basis of my skim of the ruling, the judge seemed to say that there was little chance of Schroer's prevailing on the "sexual stereotype" theory, but perhaps a chance of winning a straightforward sex discrimination claim: If David was good enough for the job, and Diane isn't and they're otherwise similarly qualified (exactly similarly, in fact!), that's sex discrimination. And that actually seems to be the argument that treats transgendered people in a more respectful way: The stereotyping theory essentially involves viewing Schroer as a man who's acting like a woman and being punished for it. The straightforward discrimination argument starts from the assumption that Diane just is a woman in all the relevant senses, even if she hasn't yet completed the physiological transition. And a victory on those grounds would yield the correct result in this case without shaking up sex discrimination laws--and the expectations of private employers and employees--too much.

Comments

|4.5.06 @ 2:44PM|#

The thing is, the sexual discrimination claim doesn't really hold water either, at least not perfectly. I doubt they denied Diane the job because she was a "women". Most likely, they denied Diane the job because additional information had come to light after they had already offered the job - additional information which convinced them that "she" was no longer an appropriate hire.

It's analagous to rescinding a job offer because you found out the employee has 12 cats. They found out some additional information between the time they made the offer and the time they rescinded the offer.

The information they recieved wasn't merely that the applicant was a "women" - it was that the applicant was a man pretending to be a women. That's a very different form of discrimination.

|4.5.06 @ 2:48PM|#

I worked for an agency that had exactly the same thing happen. We hired Jack and got Janet. Management was very happy that the sex change improved their EEO figures.

|4.5.06 @ 2:55PM|#

"It's analagous to rescinding a job offer because you found out the employee has 12 cats. They found out some additional information between the time they made the offer and the time they rescinded the offer."

Yes, except it's OK under the law to rescind a job offer if the applicant has too many cats. It's usually not OK under the law to rescind an offer because the applicant is a different sex than you thought. (Libertarian disclaimer: Of course, employers should be free to hire and fire whomever they want on whatever grounds, etc., etc.)

|4.5.06 @ 3:08PM|#

SR - as I stated, the issue isn't that they found out they had hired a woman, it is that they had found out they had hired a man pretending to be a woman. As far as I know, transgender is not yet a protected class.

|4.5.06 @ 3:10PM|#

Why does the Library of Congress have terrorism analysts?

|4.5.06 @ 3:52PM|#

Lib disclaimer aside, why is it legal to rescind an offer because someone has too many cats? I didn't know that. Is it legal to rescind a job offer because someone eats only Twinkies?
Personal disclaimer: I only have 2 cats :-)

|4.5.06 @ 4:07PM|#

"why is it legal to rescind an offer because someone has too many cats?"

In the absence of a statute that limits an employer's ability to hire/fire or a contract that gives specific terms for firing (such as "good cause"), employment is "at will", meaning your employer can fire you for any reason. I'm not aware of any legislation protecting people based on cat ownership, and most American workers do not have contracts that limit their employer's ability to fire them.

|4.5.06 @ 4:09PM|#

"Why does the Library of Congress have terrorism analysts?"

When people violate copyright laws, the terrorists win, joe.

|4.5.06 @ 5:24PM|#

That there are a line of cases, most famously connected with abortion, establishing a protected sphere of private medical decisions...

*Abuse of language ALERT!*

Abortion is not a medical decision. Neither is a sex change.

Medicine: The science of diagnosing, treating, or preventing disease and other damage to the body or mind.

A pregnancy is not a disease. Neither is having male equiptment.

|4.5.06 @ 6:21PM|#

Angainor, you do a noble service by keeping Melkor bound.

|4.5.06 @ 6:40PM|#

Angainor, you do a noble service by keeping Melkor bound.

It's a job.

|4.5.06 @ 10:06PM|#

"There are a line of cases..." No, There IS a line of cases. Back to grammar school for Julian.

|4.6.06 @ 4:33AM|#

"There are a line of cases..." No, There IS a line of cases. Back to grammar school for Julian.

I'm sure Julian knows the difference. Anyone not sufficiently anal-retentive could know the difference and occasionally make this mistake. It does take someone particularly anal-retentive to point it out, though.

|4.6.06 @ 9:35AM|#

Why do the semi-literate insist on retaining the terminology of a discredited freudianism? What's wrong with "overly meticulous" or "nitpicking?"