Procedural Posture

The plaintiff brought a civil action against Billington, the head of the Library of Congress, a government agency. The plaintiff alleged that the defendant’s decision not to hire her after she announced that she would undergo a male to female gender transition amounted to sex discrimination contrary to Title VII of the Civil Rights Act. The defendant moved to dismiss for failure to State a claim and the District Court denied the motion. The case then went to trial on the merits.

Facts

The plaintiff was a transgender woman. In 2004, before changing her gender identity, she applied for a post of Specialist in Terrorism and International Crime with the Congressional Research Service (CRS), an arm of the Library of Congress. She applied as “David J. Schroer” and used the male pronoun.

The plaintiff was well qualified for the job. Before her retirement from the military in 2004, she was a colonel assigned to the United States Special Operation Command, serving as the director of a classified organisation that tracked and targeted high-threat international terrorist organisations. In this position, she analysed sensitive intelligence reports, planned operations and regularly briefed senior military and government officials, including the Vice President and the Secretary of Defence.

Before applying for the position with CRS, the plaintiff had been diagnosed with gender identity disorder and was working with a clinical social worker in order to develop a plan for transitioning from male to female. However, since she had not yet begun to present herself as a woman on a full-time basis, she applied for the position and attended the interview as a male.

The plaintiff received the highest interview score of all candidates. She was then asked to submit several writing samples and an updated list of references. After receiving these materials, the members of the selection committee unanimously recommended that the plaintiff be offered the job. A CRS staff member, Charlotte Preece, called the plaintiff in order to offer her the job and she accepted. Preece began then to fill out the paperwork necessary to finalise the hiring.

Before Preece had completed and submitted these documents, the plaintiff asked her to lunch in order to tell her about her gender transition. Since she was about to start dressing in traditionally feminine clothing and presenting as a woman on a full-time basis, the plaintiff believed that it would be less disruptive if she started work at CRS as a woman, rather than started as a man and later began presenting as a woman. The plaintiff explained that she was transgender, that she would be transitioning from male to female, and that she would be starting work as a woman. Preece asked a number of questions about this process and raised the issue of the plaintiff’s security clearance, necessary for the terrorism specialist position. Afterwards, Preece went back to the Library and spoke to the personnel security officer for the Library of Congress, asking what impact the gender transition might have on the plaintiff’s ability to get a security clearance. The officer answered that she did not know and that she would have to look into the applicable regulations.

The next day, Preece met with other members of staff to discuss the terrorism specialist position. She said that the plaintiff had been, but no longer was, her first choice for the position. During the meeting, no in-depth discussion took place of the issues linked to the plaintiff’s security clearance. By the end of the meeting, Preece had made up her mind that she no longer wanted to recommend the plaintiff for the position. On the following day, Preece called the plaintiff to rescind the job offer, saying: “[B]ased on our conversation yesterday, I’ve determined that you are not a good fit, not what we want”. She then called the second candidate and offered him the position.

Issue

Whether the defendant’s refusal to hire the plaintiff was based on her transgender identity and, if that was the case, whether this amounted to discrimination on the basis of sex.

Domestic Law

Civil Rights Act of 1964, Title VII (Equal Employment Opportunities) Section 703 (prohibiting discrimination on the basis of race, colour, religion, sex or national origin).

Price Waterhouse v. Hopkins, United States Supreme Court, 1989 (affirming that Title VII’s protection includes claims of discrimination based on gender role stereotyping).

Smith v. City of Salem, United States Court of Appeals for the 6^th Circuit, 2004 (affirming that discrimination against transgender individuals is a form of sex stereotyping).

Ulane v. Eastern Airlines, United States Court of Appeals for the 7^th Circuit, 1984 (holding that discrimination based on gender identity is not protected by Title VII) (implicitly overruled by Price Waterhouse).

Reasoning of the Court

The plaintiff claimed that the defendant denied her employment solely because of her gender identity and that this violated the prohibition of discrimination on the basis of sex set forth in Title VII of the Civil Rights Act.

The defendant argued that it had a number of non-discriminatory reasons for refusing to hire the plaintiff, including concerns about her ability to receive and continue to hold a security clearance; her ability to maintain her contacts within the military after the transition; and her credibility when testifying before the United States Congress, since the position required congressional testimony. Since the plaintiff had not been forthcoming about her transition from the beginning, doubts were raised about her trustworthiness. Finally, the defendant contended that it feared that the plaintiff’s transition might distract her from her job. The defendant also argued that “a hiring decision based on transsexuality is not unlawful discrimination under Title VII”.

The Court divided its reasoning in two parts. First, the Court analysed the security clearance and other concerns raised by the defendant and found them to be plainly manufactured to justify the hiring decision. The Court noted that the plaintiff already held a security clearance from her employment with a prior government agency and that the Library of Congress would typically recognise this security clearance.

As to the objections raised about the plaintiff’s credibility and military contacts, the Court noted that they were “explicitly based on her gender non-conformity and [her] transition from male to female and [were] facially discriminatory as a matter of law”. According to the Court, “deference to the real or presumed biases of others is discrimination, no less than if an employer acts on behalf of his own prejudices”.

In the second part of its opinion, the Court analysed the two legal theories advanced by the plaintiff in order to demonstrate that the defendant’s conduct amounted to prohibited sex discrimination.

The plaintiff’s sex stereotyping theory was grounded in Price Waterhouse v. Hopkins, a case in which a female senior manager was denied partnership in a firm because she was perceived to be too “macho” for a woman. In ruling for the plaintiff, the Court held that Title VII’s reach included claims of discrimination based on “sex stereotyping”. Since Price Waterhouse, other federal courts had also concluded that punishing employees for failure to conform to sex stereotypes was sex discrimination.

Following this line of cases, the 6^th Circuit had held that discrimination against transgender individuals was a form of sex stereotyping prohibited by Price Waterhouse. In Smith v. City of Salem, for instance, the 6^th Circuit affirmed that “discrimination against a plaintiff who is transsexual – and therefore fails to act and/or identify with his or her gender – is no different from the discrimination directed against Ann Hopkins in Price Waterhouse, who, in sex-stereotypical terms, did not act like a woman”.

According to the Court, the present case rested on direct and compelling evidence that the defendant’s decision not to hire her was “infected by sex stereotypes”. The selecting official admitted that “when she viewed the photographs of [the plaintiff] in traditionally feminine attire … she saw a man in women’s clothing”. Moreover, she believed that others at the Library of Congress, as well as in Congress, would not take the plaintiff seriously because they, too, would view her the same way.

The Court therefore concluded that the plaintiff was entitled to a judgment based on a Price Waterhouse type claim for sex stereotyping.

The plaintiff’s second legal theory was that, since gender identity is a component of sex, discrimination on the basis of gender identity was sex discrimination. The Court noted that the defendant was enthusiastic about hiring the plaintiff until she disclosed her plans for a gender transition. The defendant revoked the offer when it learned that the man to whom it had offered the job was about to become a woman. According to the Court, this amounted to discrimination on the basis of sex.

In order to explain its reasoning, the Court drew a parallel between sex discrimination and religious discrimination. It argued that, just as religious discrimination easily encompassed discrimination based on a change of religion, sex discrimination should include discrimination based on a change of sex. According to the Court, courts have traditionally allowed their focus on the label “transsexual” to prevent them from including the issue within sex discrimination.

In Ulane v. Eastern Airlines, for instance, the 7^th Circuit held that discrimination based on sex meant only that “it is unlawful to discriminate against women because they are women and against men because they are men”. However, the Court affirmed that this was no longer a tenable approach. Moreover, it argued, even if the anatomical approach to Title VII was accepted, the defendant’s decision not to hire the plaintiff because she planned to change her anatomical sex was literally discrimination because of sex.

The Court held that, in refusing to hire the plaintiff on the basis of her gender transition and of her failure to conform to the decision maker’s sex stereotypes, the defendant violated the Title VII prohibition on sex discrimination.

Schroer v. Billington, District Court of Columbia, United States (full text of judgment, PDF)