Schroer v. Billington

• Decision Date: 31 March 2006
• Docket Number: No. CIV.A. 05-1090JR.,CIV.A. 05-1090JR.
• Citation: 424 F.Supp.2d 203
• Parties: Diane J. SCHROER, Plaintiff, v. James H. BILLINGTON, Librarian of Congress, Defendant.
• Court: U.S. District Court — District of Columbia

424 F.Supp.2d 203

Diane J. SCHROER, Plaintiff, v. James H. BILLINGTON, Librarian of Congress, Defendant.

No. CIV.A. 05-1090JR.

United States District Court, District of Columbia.

March 31, 2006.

Arthur B. Spitzer, American Civil Liberties Union, Washington, DC, Sharon M. McGowan, American Civil Liberties Union Foundation, New York, NY, for Plaintiff.

Julia Douds, U.S. Attorney's Office, Washington, DC, for Defendant.

MEMORANDUM ORDER

ROBERTSON, District Judge.

Plaintiff Diane Schroer, a male-to-female transsexual, sues defendant Library of Congress for sex discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1). In the alternative, she asserts a claim under the Equal Protection Clause of the U.S. Constitution, and the Library of Congress Act, 2 U.S.C. § 140. The defendant moves to dismiss for failure to state a claim. Plaintiffs allegations of sex sterotyping do not state a claim under Title VII, but, because discrimination against a transsexual may nevertheless violate Title VII's proscription of discrimination "because of. .. sex," the motion to dismiss will be denied.

Factual Background

At birth, plaintiff was classified as male and christened "David John Schroer." Pl.'s Opp. to Mot. to Dismiss at 4. From a young age, she was socialized to wear traditionally masculine attire and to think of herself as a boy. Id. However, this designation did not match her gender identity, defined as "a person's internal psychological identification as a man or a woman." Id. at 3. Schroer was ultimately diagnosed with gender dysphoria, a condition describing this disjunction between gender identity and anatomical sex. Id. at 4.

The leading organization for the study and treatment of gender dysphoria is the Harry Benjamin International Gender Dysphoria Association (HBIGDA). Id. HBIGDA has formulated standards of care for the treatment of patients with gender dysphoria. Id. For some patients with the condition, the standards recommend a process of sex-reassignment, in which steps are taken to conform the patients external manifestations of sex with his or her internal gender identity. Id. The process commonly involves three stages: presenting oneself full-time as the gender corresponding to one's identity (the "real life" test), hormone therapy, and sex-reassignment surgery. Id.

The stages of sex-reassignment are managed according to standards to ensure that they are appropriate for the individual patient and reflect an appropriate diagnosis of gender dysphoria. For example, to begin hormone therapy, HBIGDA standards require a patient to have lived full-time as the gender that matches his or her identity for three months, or have a therapeutic relationship of at least three months with a mental health professional who recommends such treatment. Id. at 5. To be eligible for sex-reassignment surgery, HBIGDA standards require the patient to have lived full-time as the appropriate gender in every aspect of his or her life for at least one year. Id. Consistent with these standards, David Schroer changed her legal name to Diane Schroer, and she now lives full-time as a woman. Id.

In August 2004, before she changed her name or began presenting as a woman, Schroer applied for a position as a terrorism research analyst with the Congressional Research Service (CRS), an arm of the Library of Congress ("Library"). Id. She was highly qualified for the position. Schroer is a twenty-five year veteran of the U.S. Armed Services, who held numerous critical command and staff positions in the Armored Calvary, Airborne, Special Forces and Special Operations Units, and in combat operations in Panama, Haiti, and Rwanda. Id. at 2. She is a graduate of the National War College and the Army Command and General Staff College, and has masters degrees in history and international relations. Id. Schroer spent the last seven and a half years of her military career with the United States Special Operations Command (USSOCOM), which "plans, directs, and executes special operations in the conduct of the War on Terrorism in order to disrupt, defeat, and destroy terrorist networks that threaten the United States . ..." Id. at 3.

After the September 11, 2001 terrorist attacks, Schroer was appointed the director of a 120-person classified organization charged with tracking and targeting high-threat international terrorist organizations. Id. The role required her to analyze highly sensitive intelligence reports, plan operations, and brief top U.S. officials, including the Vice President, the Secretary of Defense, and the Joint Chiefs of Staff. Id. After retiring from the military, Schroer became a senior analyst and program manager at a private consultant firm, where she worked with the National Guard on infrastructure security issues. Id.

Not surprisingly given her background, Schroer was invited to interview with three representatives of the CRS, including Charlotte Preece, in October 2004. Id. at 5. Since Schroer had applied as David J. Schroer and had not yet begun presenting as a woman, she attended the interview dressed in traditionally masculine clothing. Id.

Shortly thereafter, Preece called Schroer to offer her the position. Id. at 6. When Schroer expressed a concern about the position's salary, Preece conferred with the Library's human resources department and called Schroer again to inform her that CRS would be able to offer her a salary comparable to the one she was earning as a private consultant. Id. Schroer then accepted the position, and Preece stated she would begin processing the required paperwork. Id. On December 20, 2004, Preece invited Schroer to her office to discuss the administrative details of Schroer's start and to introduce her to some of her future colleagues. Id. Preece stated that the selection committee believed that Schroer's skills and experience made her application far superior to those of the other candidates. Id.

Up to this point, Schroer had been using her traditionally masculine legal name, and she had interacted with Preece while wearing traditionally masculine clothing. Id. As part of her treatment for gender dysphoria, however, Schroer was about to begin the initial stages of the sex-reassignment protocol under the HBIGDA guidelines, as recommended by her physician. Id. This meant that she would be using a traditionally feminine name, dressing full-time in traditionally feminine attire, and begin living and presenting herself as a woman. Id.

Recognizing that Preece had been interacting with someone she understood to be a man, Schroer decided to explain to Preece that she was under a doctor's care for gender dysphoria and that would be presenting herself as a woman when she started work as a terrorism research analyst. Id. at 7. To reassure Preece that she would dress in a workplace-appropriate manner, Schroer showed Preece photographs of herself dressed in traditionally feminine workplace-appropriate attire. Id. Although Preece did not indicate that Schroer's situation would be a problem, she left Schroer by saying that she had "really given [her] something to think about." Id.

Preece called Schroer the next day to inform her that, after "a long restless night," she had decided that "given [Schroer's] circumstances" and "for the good of the service," Schroer would not be a "good fit" at CRS. Id. She thanked Schroer for her honesty and the manner in which she had handled the situation. Complaint ¶ 48.

Schroer received a form e-mail on February 7, 2005 stating that the terrorism research analyst position had been filled. Id. at 1149. Schroer timely filed an administrative complaint with the Equal Employment Office of the Library of Congress, alleging sex discrimination under Title VII. Pl.'s Opp. to Mot. to Dismiss at 7. After exhausting her appeals, Schroer filed this lawsuit.

Analysis

Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1) prohibits discrimination in employment "because of. .. sex." Applying these three simple words in the context of transsexuals is decidedly "complex." Etsitty v. Utah Transit Auth., 2005 WL 1505610, *3 (D.Utah June 24, 2005); Doe v. United Consumer Fin. Serv., No. 1:01-CV-1112, 2001 WL 34350174, *2 (N.D.Ohio Nov.9, 2001). Until very recently, all federal courts squarely facing the issue had held that Title VII does not prohibit discrimination on the basis of transsexualism or gender identity. See Ulane v. E. Airlines, Inc., 742 F.2d 1081, 1085 (7th Cir.1984); Sommers v. Budget Mktg., Inc., 667 F.2d 748, 750 (8th Cir.1982); Holloway v. Arthur Andersen & Co., 566 F.2d 659, 662-63 (9th Cir.1977); Doe v. U.S. Postal Service, 1985 WL 9446, *2 (D.D.C.1985). These cases based their reasoning on Congressional intent, finding that Congress "had a narrow view of sex in mind" and "never considered nor intended that this 1964 legislation apply to anything other than the traditional concept of sex." Ulane, 742 F.2d at 1085-86. Rather, according to these decisions, Title VII merely prohibits discrimination against men because they are men and women because they are women. Id. at 1085.

This narrow view of Title VII was challenged by the Supreme Court's discussion of sex stereotyping in Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989). The D.C. Circuit has not had occasion to apply its teaching, although Price Waterhouse originated here, but a number of other courts have abandoned Ulane after Price Waterhouse and ruled that Title VII protects transsexuals who do not conform to their employers' gender stereotypes. The jurisprudence emerging from the decisions of those courts presents three questions: (1) After Price Waterhouse, is all sex-stereotyping actionable under Title VII? (2) If so, is a refusal to hire a person with gender dysphoria unlawful discrimination based on sex stereotyping? (3) If not, notwithstanding Ulane, does Title VII prohibit discrimination against transsexuals?

1. ...