CalEmployeeRights

More Schroer Information

     As promised, here are some additional links and some additional information on the ruling in Schroer v. Library of Congress.

     A very full analysis of the opinion and the course the case took on its path to finally reaching a verdict can be found here.  Additionally, this blog entry contains an analysis of the ruling and how Judge James Robertson carefully crafted and supported his opinion in this case.  The full text of the Court's opinion is available here.  The interesting thing to note is how the Court found for Schroer both on the sex stereotypes theory discussed below, and even more importantly found that discrimination on the basis of gender identity is sex discrimination.

     A more general overview can be found in this CNN story or in this story.     

     Finally, if you are interested in this topic or the general topic of how 9th Circuit Courts view the "because of sex" language in Title VII sex stereotyping cases, I recommend reading two cases cited by Schroer in support of her position: Rene v. MGM Grand Hotel, Inc., (9th Cir. 2002) 305 F.3d 1061 and Nichols v. Azteca Rest. Enters., Inc., (9th Cir. 2001) 256 F.3d 864.  Both cases find that the Title VII's "because of sex" language protected homosexual male plaintiff's who were harassed because they failed to fit into gender stereotypes. 

     Based on these prior Ninth Circuit rulings, it's my gut feeling that even prior to the ruling in Schorer, the Ninth Circuit would have found that Title VII protected transgender plaintiffs under sex stereotyping theories as the Sixth Circuit did in Smith v. Salem (6th Cir. 2004) 378 F.3d 566.

    I'm quite sure that the government will appeal the ruling in Schroer so this issue is far from closed, but at least in the meantime, this gives plaintiffs more ammunition under Title VII.

     --Michael Sachs

Court Finds For Plaintiff In Transgender Discrimination Case

     Just in time for your weekend.  The Court in the Schroer v. Liabrary of Congress finally reached a verdict, finding for the plaintiff.  The court ruled that the Library of Congress illegally discriminated against Schroer when she was denied a job after disclosing her intention to transition from male to female. 

     As it had with the Library's previous motion to dismiss, the Court found that discriminating against someone for changing gender is "sex discrimination" under Title VII.  Interestingly, the Court analogized this to religious discrimination, saying, "Imagine that an employee is fired because she converts from Christianity to Judaism.  Imagine too that her employer testified that he harbors no bias toward either Christians or Jews but only 'converts.' That would be a clear case of discrimination 'because of religion.' No Court would take seriously the notion that 'converts' are not covered by the statute."

     The ACLU's press release is available here.  I'm sure there will be a large amount of coverage on this case, so I'll follow up with some links as they become available and I'll include a discussion of how California has treated cases under Title VII. 

     My previous blog entries about this case are available here and here and here. 

     --Michael Sachs

Still Waiting on Verdict in Schroer- Some Additional Information

     While we are still waiting to hear the verdict in the Diane Schroer case (discussed previously in this blog here and here), here is the plaintiff’s post-trial brief.  This brief walks step by step through the plaintiff’s argument of why the court should find her discrimination actionable.  Its well written statement of the law and lays out some of the facts that were presented during the trial.

     --Michael Sachs

Trial In Schroer Case Concludes

       The trial of Diane Schroer has now concluded.  Ms. Schroer brought a sex discrimination claim against the Library of Congress which rescinded her job offer shortly after learning that Ms. Schroer intended to transition from male to female prior to beginning her employment.  More background can be found in my earlier post about the case. 
       During trial, a primary area of dispute was what the terms “sex” and “sex discrimination” mean and whether a person’s “sex” includes gender identity.  Both sides presented expert opinions on the meaning of “sex.” 
       Ms. Schrer’s expert was Dr. Walter Bockting, an associate professor at the University of Minnesota.  A copy of Dr. Bockting’s expert report in this case is available here, while his supplemental report is available here.  Dr. Bockting’s report states that sexual identity has at least four components, the most important of which, in deciding sex assignment, is gender identity.  Gender identity is established early in life as a result of sexual differentiation of the brain and is not amenable to change. 
       A brief copy of Dr. Bockting’s CV can be found here, a review of which indicates that his primary area of focus and study is the interaction between gender identity and HIV risk.  If you are interested in this topic, the transcript of an interview with Dr. Bockting is available here; while a video of a lecture he gave on the topic of gender identity and depression is available here (there is a fee to watch the video.)
       The government’s expert on gender identity was Dr. Chester Schmidt.  Dr. Schmidt works as a professor and medical director at Johns Hopkins.  Background regarding Dr. Schmidt can be found here and here.   Dr. Schmidt argued that sex refers only to chromosomal configuration, i.e. xy for males and xx for females. 
       Some additional coverage of the trial can be found in the ACLU’s blog.  Additionally, the Washington Post has some coverage of the trial, including a brief description of Ms. Schroer’s trial testimony.  A copy of that article can be found here.
       I would expect a verdict to be rendered within the next week (although it is possible it could take make longer than that, depending on the amount of evidence that is reviewed) at which time we will post a further update. 

       -- Michael Sachs

Case of Transgender Discrimination Goes to Trial

                Trial in the case of Diane Schroer against the director of the Library of Congress started on Tuesday in Federal Court in Washington D.C.  This is a very interesting case as it deals with a claim of discrimination based on gender identity and whether Title VII protects against such discrimination.