Here's a Story About Dave and Diane
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a position as a terrorism analyst at the Library of Congress as Dave, then—just before he was due to start—had it rescinded when he revealed he'd be showing up as a she.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.