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.