Retired Special Forces Col. Dave Schroer seemed like the perfect fit for the terrorism analyst position with the Congressional Research Service at the Library of Congress. Last December, two weeks before he was due to start work, he met for lunch with the supervisor who'd hired him, Charlotte Preece, at a Chinese restaurant on Capitol Hill. According to Schroer, Preece assured him that his impressive resume—25 years of Army service, a master's degree from the National War College, and a stint as the head of a classified 120-person group dedicated to tracking terrorists in the wake of 9/11—put him leaps and bounds ahead of the next best candidate they'd considered.
Then Dave explained that by the time he started work, he would be a she: Diane Schroer.
The next afternoon, Schroer says, Preece called to tell her that in light of their conversation, "After a very long and sleepless night, I've determined that you're not what we're looking for, you're not a good fit for the Library." Though the hiring paperwork was completed and ready to file, though Schroer had already been introduced to many of her future colleagues, the job offer was now rescinded. (Both Preece and the Library's press office declined to comment on Schroer's account.)
"Initially my reaction was to walk away from it," says Schroer. "If they didn't want me working there, it was probably not a good place to be working. But the more I thought about it, the more it just seemed not right. I had invested 26 years of my life in government service, fairly arduous at some points, and at the same time in those 26 years the government had invested an awful lot in me." In June, with the help of the American Civil Liberties Union, Schroer filed a sex discrimination suit against the Library.
ACLU attorney Sharon McGowan explains that they plan to make a two-pronged argument: One hinges on the Title VII federal ban on sex discrimination. In 1989, in Price Waterhouse v. Hopkins, the Supreme Court ruled that discrimination according to gender stereotype—in that case, the refusal to promote a woman who didn't act "feminine enough"—fell within the scope of sex discrimination. The Sixth Circuit Court of Appeals last year built on that ruling in Smith v. City of Salem to cover a transgendered firefighter who had been suspended after announcing his intention to become a woman.
But Robert C. Post, a Yale Law School professor who has written on sexual stereotypes and gender discrimination, notes that while the case law is gradually changing—meaning Schroer's case could go either way—most courts have been reluctant to consider gender crossers under the rubric of sex discrimination law, preferring to view the central issue in such cases as more akin to sexual orientation (although gender identity and sexual preference are distinct) than to a simple refusal to conform to sex stereotypes, which is clearly protected.
"Imagine an employer says that men can't wear dresses," suggests Post. "That seems like a pretty clear-cut case of gender discrimination: Men can't do something women can." But, says Post, few courts would count such a rule as gender descrimination, and judges tend to find ways to rationalize restrictions that reflect conventional notions of feminine or masculine behavior. Legal categories such as "discrimination on the basis of gender," says Post, end up being treated not as objective standards but "vehicles for social meaning" that depend on judicial determination of which gender stereotypes may be enforced.
That leaves the law a bit muddled as to what counts as discrimination "on the basis of" sex or gender. In 1986, for example, the Eight Circuit Court of Appeals overturned a sex discrimination jury verdict in favor of Christine Craft, a news anchor who'd been demoted to reporter after focus groups showed that audiences found her insufficiently feminine.
Consider another contentious issue: gay marriage. The most obvious way to interpret the refusal to extend marital rights to gay couples is as an instance of discrimination on the basis of sexual orientation. But it can also be parsed as sex discrimination: A man is forbidden to marry his male partner, though he'd be permitted to if he were a woman. Whether we regard that as an instance of sex discrimination will depend on whether we see marriage as intrinsically gendered—it's not sex discrimination, for instance, for a director casting a TV show to consider only female applicants for female parts—or as centrally about loving relationships, making the "one man, one woman" rule a mere vestige of the cruel historical refusal to recognize the equal validity of gay couplings.
There are multiple ways to read Schroer's case as well: In addition to the sex discrimination claim, attorney McGowan also plans to advance a somewhat more novel Due Process claim, grounded, she says, in "individuals' liberty interest in making important personal decisions, in this case a series of medical decisions, without fearing penalty by the government." The idea here is that the courts have recognized a zone of privacy around certain sorts of medical choices—most famously abortion and the refusal of treatment by terminal patients—that prevents the government not only from banning such choices, but also from placing "undue burdens" on their exercise.
It's hard to regard Schroer's case as akin to that of a director refusing to cast a man in a femme fatale role. Terrorism analysis isn't obviously hindered by mascara, and Robert Dardano, a member of the federal gay employees group GLOBE at the Library, says that the Library is in general an open and diverse working environment, and that other employees were shocked and dismayed when they learned Schroer's offer had been rescinded. (Even if that weren't the case, of course, it would be strange to suggest that coworker discomfort could form a basis for discrimination: Nobody would regard it as a defense against a charge of racial discrimination to note that a large number of the other employees at some agency were racists.)
If Schroer's account of events is accurate, her case should be a slam dunk: If Dave was good enough for the government, so should Diane be. If her supervisor wouldn't have caviled at an employee born a woman presenting herself as one on the job, that ought not to change just because Diane had the misfortune to be born with the wrong set of biological equipment. But, as Post observes, courts are ingenious at finding ways to circumvent the radical implications of gender equality when it means overturning traditional notions of femininity and masculinity.
Schroer, for her part, says she'd still like the job. A wise court would give it to her. As renewed attacks raise the stakes in the war on terror, the government could badly use a few good ex-men.