Schroer Update


The government has fired its preliminary response, a motion to dismiss [PDF], in the case of Diane Schroer, the transgendered woman who lost her job offer at the Library of Congress when she revealed her intention to show up as Diane rather than Dave—and who I wrote about last week.

Their argument is more or less as expected: They deny that being transgendered puts one in a "protected class" (which, as I recall, the original ACLU complaint hadn't claimed anyway) and, more to the point, that gender crossing doesn't fall within the scope of "sexual stereotype" discrimination. And there, as law prof Robert Post noted when I spoke to him for the piece, is the rub: The courts are perfectly ready to agree that it's gender discrimination if you fire a man for acting too sissy or a woman for being too butch in most contexts. But they're not prepared to say the same thing about the man who's fired because he insists on coming to work in a dress (so long as female employees are allowed to do so). That the government has to fall back on slippery slope logic of this kind (i.e. if it's discrimination to rescind Schroer's job offer, it'll be discrimination to refuse any man the right to wear a dress) is a kind of confirmation of Post's point: There's no actual bright line principle here, but rather an elaborate process by which judges rationalize the kinds of gender stereotyping that are seen as too thoroughly entrenched to challenge, while forbidding the kinds that are more pernicious and unpopular. Time will tell which category applies here.

NEXT: Keep It Under Raps

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  1. Reminds me of a job a few years back where one day it was announced that wearing shorts were forbidden (this was in Pasco, WA, in the summer, in an office with no A/C = ~105 deg. F).

    So the next day I showed up in a kilt. The company president came into my office and said (officially) that if women could wear skirts then he was legally obligated to let me wear a kilt (I didn’t even have to threaten him with a lawsuit for denying me my “cultural heritage”).

    He also said (unofficially) that it was the funniest damn thing he’d ever seen …

  2. Where did you find a kilt on one day’s notice?

    Did you rent it?

  3. I still get confused by the use of the words “transgendered” and “gender”. Isn’t “transsexual”, which I suppose has become un-PC (like “midget”) a more appropriate term? What’s the operation where you get the y-chromosome replaced another x?

  4. Actually, my mom threw together a “temporary” one overnight. I then immediately ordered a real one from UtiliKilts.

    I’ve since moved to Seattle, and found a surprising number of kilt stores, in both traditional and “modern” designs (ooh, pockets!). I even got married in a kilt. Since I started working at Amazon, I’ve noticed several people who wear kilts regularly.

  5. jf, I believe in current usage, “transgender” is an omnibus term covering everyone from crossdressers to sex-change recipients; while “transsexual” is someone who gets the hormone treatments and changes the plumbing.

    What’s the operation where you get the y-chromosome replaced another x?

    I . . . do not think this is possible.

  6. Thanks Phil. defines transgendered as

    Appearing as, wishing to be considered as, or having undergone surgery to become a member the opposite sex.

    Therefore, isn’t it more appropriate to call Schroer a “transgendered man”? I suspect PC again (don’t want to hurt the feelings of the guy who thinks he’s a girl).

  7. ‘Transgendered’ means that your gender identification does not match your biological gender. It doesn’t actually matter if you’ve had any of the various surgeries.

    ‘Transsexual’ means that you’ve had sexual reassignment surgery, or other permanent gender change procedure (such as hormone therapy). Not all transgendered people are, or intend to be, transsexual.

  8. jf, the polite way to refer to any transgendered person is as the gender with which they identify. If, for some reason, it’s necessary to refer to them in the context of their transition, the usual terminology is ‘FTM’ (female-to-male) or ‘MTF’ (male-to-female).

    I have a fair number of transgendered friends. Pretty much the ultimate in rude and inappropriate behavior is to refer to them by the gender with which they do not identify, even qualified by ‘former’ or ‘transsexual’.

  9. How about if you refer to them as “deluded nut-bag”?

  10. You could do that, sure. You mind referring to black people as ‘niggers’?

    Or demonstrating once more that transgendered people are the last group of people in America that it’s socially acceptable to hate?

  11. I wouldn’t refer to all black people as niggers. Just the niggers.

  12. Wow. isildur is the first person I’ve seen here who seems to -get- the whole trans thing.

    However, for those people who are somewhat interested in understanding transgender individuals and their struggle for acceptance, I suggest reading Trans Liberation by Les Feinberg, or perhaps Gender Outlaw by Kate Bornstein.

    For those of you who deride trans individuals as deluded, mentally ill, or comparable to furries: you’re assholes. Come back when you’ve made some attempt to learn about transgendered folk, instead of passing along harmful misconceptions.

  13. You know, I just find it very hard to give a rat’s ass what consenting adults do in private with their willies and their woohoos. And I consider what is done in doctor’s offices to be private.

    I mean, I just really don’t care if you are straight, gay, confused, yearning, whatever.

    About the only thing that you can do with your sex life that is likely to bug me is cheat on someone.

  14. Strangely, I find myself in the position of thinking that if he’s willing to have the surgery, then he’s serious enough to employ.

    If he were just dressing like a girl, then I’d be less sympathetic. He can do that on his own time.

    I don’t pretend this is logical.

    If a white man considered himself transracial and went to work in blackface, I’d call him a deluded nut-bag.

  15. “If a white man considered himself transracial and went to work in blackface, I’d call him a deluded nut-bag.”

    Actually, that’s not as crazy as the thinking you’re “transgendered”.

  16. I don’t care what sex a person wants to call himself or how he wants to dress, but I find it bizarre and illogical to allow a person to choose what sex to call himself in a publication. A person with XY chromosomes is a “he.” A person with XX chromosomes is a “she.” How the person feels inside doesn’t change the biological reality. If a person’s friends choose to pretend that he is another gender, that’s perfectly fine with me, but to insist that other people are rude if they don’t join in the fantasy in just plain goofy. And hurling profanity at people who don’t buy into this new orthodoxy — but who otherwise couldn’t care less what the people do with their lives — shows amazing immaturity.

    One a related subject, I’d be curious how people here would feel if the facts were the same but the potential employer were a private company. As a libertarian, I’d certainly support the right of an employer to employ (or not employ) whoever he wants for whatever reasons, whether I agree with the reasons or not.

  17. There’s this powerful impulse to ban the terminally stupid, but then you realize that full-blown imbeciles are their own best refutation…

  18. David,
    There are a fair number of medically documented cases of people whose gender genotype doesn’t match their physical gender (that is, a person born with XX chromosomes and a penis or with XY chromosomes and female genitalia. This is different from hermaphroditism because the person has only one set of external sex organs, not both). The working hypothesis is that there are rare cases where a fetus develops without receptors for the hormones that correspond to her/his gender genotype, and so the external sexual characteristics of the other gender develop. Apparently, actress Jamie Lee Curtis is genotypically XY. Would you insist on referring to her as a man because she has a Y chromosome? If, as I assume, you do not insist on genotype testing before determining what gender you will label someone, why is it so out of the question for you that someone should be referred to as the gender they personally identify with instead of by their chromosomal makeup?

  19. Apparently, actress Jamie Lee Curtis is genotypically XY.

    Urban legend!

  20. I stand corrected. Snopes has the Curtis rumor as “undetermined,” so I won’t stand by it. In any case, there are other scientifically documented cases of XY genotype individuals who are phenotypically female or XX genotype individuals who are phenotypically male.

    From Wikipedia (“XY sex-determination system”):
    “It was discovered in the 1980’s that humans, as well as some other animals, can be chromosomally transsexed – that is, XX male and XY female. This occurs at a rate of approximately 1 in 42,000 births, making it a relatively common occurence.”

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