Tuesday, September 23, 2008

Thank You, Judge Robinson!

Diane Schroer has won her case for Title VII sex discrimination against the Library of Congress, which hired then immediately fired her when she came out as transsexual. U.S. District Court (trial court) for the District of Columbia. Judge James Robertson issued the decision on Friday, September 19th.

Thank you, Sharon McGowen and your ACLU team for another impressive win. In 2005 Sharon also won the Lovo-Lara case before the Federal Board of Immigration Appeals.

Normally, trial court decisions are not reported. Thank you too for promptly (same day!) posting the decision on the ACLU website.

Expect to hear the Conservative Right try to brand Judge Robertson as another out-of-control “activist” judge. He’s not. Read the decision.

Judge Robertson decided for Diane Schroer on two bases.

First, he ruled that she made-out a Price Waterhouse “sex stereotyping” claim that qualifies as Title VII sex discrimination. Then he ruled that she also made out a plain old garden-variety Title VII sex discrimination claim.

What’s the difference between these two?

Title VII of the Civil Rights Act of 1964 addresses sex discrimination. The relevant section is 42 U.S. Code Section 2000e-2(a)(1). It provides in pertinent part:

“It shall be an unlawful employment practice for an employer—
(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin…”

It may sound odd to ask but what is the meaning of “sex?” Most people think they know but it’s been a hotly contentious issue since Title VII was passed in 1964.

Courts have not been kind to transsexuals. In general, they’ve held that discrimination against transsexuals is not discrimination based on “sex.” That’s been a difficult pill for the gender variant community to swallow because we know otherwise.

Judges are just like the general population, and sometimes worse. Some seem to understand the nuances of transsexuality but generally not. Some are flat-out transphobic. The consequences are sometimes horrific, and not just in employment discrimination cases. Some of the worst stories arise in family law contexts, where transsexual husbands are treated punitively by patently bigoted judges who impose punitive spousal and child support awards while denying them contact with their minor children. These cases go almost entirely unreported.

A lawyer I know who represents transgendered people, largely in divorce cases, tells me his clients don’t get a fair hearing before judges in L.A. County. That’s consistent with my own personal and professional experience.

I think these judges just don’t understand the basics. I have never polled them but I asked one judge I know socially what the difference is between “sex” and “gender.” He couldn’t tell me. In that respect they’re like the general population, which is to say largely ignorant about research showing that transsexuality is a birth condition, that gender identity can differ from a person’s outward appearance and is probably immutably “hard-wired” into the brain’s “circuitry” before birth.

I’ve asked but know of no continuing legal education program to enlighten judges about these matters.

The cases have been a mixed bag. In the earlier cases, the judges who “got it” were reversed on appeal. The tide started to change in 2000.

In 1974, Arthur Andersen, an accounting firm, dismissed Ramona Holloway after she informed them that she was undergoing treatment in preparation for sex change surgery. She sued in Federal District Court in San Francisco, alleging Title VII sex discrimination.

Ramona Holloway argued that for purposes of Title VII, "sex" is anonymous with "gender," and gender would encompass transsexuals. Arthur Andersen claimed that the term sex should be given the traditional definition based on anatomical characteristics.

The trial court sided with the employer. Ramona Holloway appealed to the supposedly liberal 9th Circuit and lost.

In 1981, Karen Ulane filed a Title VII sex discrimination claim against Eastern Air Lines that was very similar to Diane Schroer’s claim against the Library of Congress. Ulane won at trial (Judge Grady was a Gerald Ford appointee) but in 1984 the Federal 7th Circuit Court of Appeal in Chicago reversed. Judge Harlington Wood (another Ford appointee) wrote that Karen Ulane was “a biological male who takes female hormones, cross-dresses, and has surgically altered parts of her body to make it appear to be female.” Because he regarded her as male she could not, by (his) definition, even bring a Title VII claim based on sex discrimination.

In 2001 the Kansas Court of Appeals reversed a trial court and in an opinion that read like a medical textbook on gender variance affirmed the validity of J’Noel Gardiner’s sex change to female and her right to inherit as a widow. In 2003, a Tampa, Florida trial court ruled that Michael Kantaras’ sex change from female was valid and affirmed his rights as a father. The case was televised on Court TV and the judge wrote an exhaustive 800-page opinion. Both were reversed on appeal. In both cases the higher courts punted, concluding that any decision regarding the sex of a transgendered person should be made by the legislature.

In 2000, in Schwenk v. Hartford, the 9th Circuit made the insightful observation that the terms “sex” and “gender” are used interchangeablely.

Five years after Karen Ulane lost her appeal the U.S. Supreme Court heard an appeal involving a woman who was denied promotion at (remember Holloway?) yet another major accounting firm. Nothing in the decision suggests her sexual orientation; it wasn’t an issue. Price Waterhouse denied Ann Hopkins partnership because she didn’t appear feminine enough. She sued, claiming Price Waterhouse engaged in “sex stereotyping” that she argued was Title VII discrimination based on “sex.”

Ann Hopkins won at trial and her victory was upheld on appeal by the D.C. Circuit Court of Appeal and then by the U.S. Supreme Court in a 6-3 decision.

“Sex stereotyping” was a novel theory and when Ann Hopkins made that argument no one was thinking about its consequences for the gender-variant community. But fifteen years later, a transsexual lawyer won a pioneering case for a fireman who transitioned on the job and was then fired. Jimmie Smith argued that Salem, Ohio engaged in Title VII sex discrimination when it fired her. The trial court dismissed the case on the city’s pre-trial motion that claimed that Title VII sex discrimination doesn’t protect transsexuals. Smith appealed to the Federal 6th Circuit Court of Appeal that the city had engaged in Price Waterhouse “sex stereotyping” (and therefore Title VII “sex” discrimination) because Smith presented as too feminine for a male. The appellate court reversed the lower court and in a stunningly powerful decision held for Smith.

A little later, transitioning police sergeant Philecia Barnes sued the city of Cincinnati after they fired her. She too argued Price Waterhouse sex stereotyping to make out a Title VII sex discrimination claim. The jury’s verdict was upheld by the same 6th Circuit Court of Appeal that ruled for Jimmie Smith.

Randi Barnabee, a transgender trial lawyer, represented both Jimmie Smith and Philecia Barnes.

Krystal Etsitty was a pre-op Utah bus driver who was transitioning on the job but couldn’t afford SRS. When her employer fired her she sued, alleging Price Waterhouse “sex stereotyping” claim, a regular Title VII sex discrimination claim, and an equal protection claim.

In 2005, the U.S. District Court for the district of Utah ruled against Krystal Etsitty, holding that Title VII does not protect transgender employees. The Court bought into the bus company’s defense that it might face civil liability from someone who might be offended by one of its pre-operative male-to-female bus drivers using a women’s rest room.

The District Court also rejected Krystal Etsitty’s “sex stereotyping” claim.

Krystal Etsitty appealed to the conservative 10th Circuit Court of Appeals. In 2007, that court side-stepped the Title VII issues and rubber-stamped the lower court on the bus company’s civil liability fear-mongering defense. This is the same tactic that conservatives are using to scare voters into repealing gender identity and expression protection ordinances in Montgomery County, Maryland and Gainesville, Florida.

The 10th Circuit thus avoided a split with the 6th Circuit, which had ruled in Smith and Barnes that transsexuals are protected under Title VII against discrimination because of sex under the “sex stereotyping” theory.

In baseball, a walk may be as good as a hit but “sex stereotyping” is not quite as good as winning on a plain-vanilla Title VII sex discrimination claim. That goal, however, has proven elusive.

So 24 years after Ulane, what’s new? Other than the fact that California statutes would now protect Ramona Holloway’s right to transition on-the-job, maybe Diane Schroer’s case.

Like Jimmie Smith and Philecia Barnes, Diane Schroer won at the trial court level on a “sex stereotyping” claim. Like Karen Ulane, but unlike Smith and Barnes, she also won on a claim of plain-vanilla Title VII sex discrimination.

Like Ann Hopkins, Schroer’s case was heard in the District of Columbia. It’s a very influential federal circuit that hears many federal law claims so its decisions often carry greater weight than those from other circuits. That makes this case significant.

It’s also significant that Diane Schroer sued the Federal government – the Library of Congress. That’s a first for transsexual rights litigation. It’s bound to make people sit up a little straighter and take greater notice of this issue.

The political landscape is considerably different now. Transsexuals are coming out of the closet. Twelve states, the District of Columbia, and seventy-some-odd counties and municipalities have laws protecting gender identity and expression. This reflects a growing general acceptance of transsexuality. The media is becoming increasingly aware of and sophisticated about transsexuality.

But the struggle continues, even after Smith and Barnes.

None of these cases have made it to the U.S. Supreme Court. They probably won’t unless there’s a clear split between judicial circuits and there isn’t one yet.

There would be a split (with the 6th Circuit) if the D.C. Circuit Court of Appeals were to reverse the trial court. There won’t be a split if the D.C. Circuit upholds Diane Schroer’s win.

One hopes the government does not appeal the case because no one knows what the outcome would be. Beyond that, the 800 pound gorilla is whether the U.S. Supreme Court would grant certiorari to any case on this issue.

That probably wouldn’t be a good idea just now.

In 1989, the Supreme Court voted for Ann Hopkins and against Price Waterhouse by a vote of six to three. Of the six, only one remains on the Court today – John Paul Stevens, and he’s eighty-eight. Brennan, White, Marshall, Blackmun and O’Connor are gone. Today, only three new Justices (Souter, Ginsberg and Breyer) would be Stevens’ likely allies. That’s only four votes out of nine.

On the other side, Rehnquist has been replaced by Roberts, who would likely join fellow Price Waterhouse dissenters Scalia and Kennedy and newcomers Thomas and Alito to form a 5-4 majority against Diane Schroer.

Perhaps times have changed sufficiently for us to say that the legal landscape is now safe for transsexuals. Perhaps a conservative judge may depart the Court and President Obama would appoint a liberal, tipping the scales back to better days.

Maybe Roberts will surprise everyone. It’s less impossible to think that Justice Kennedy could be persuaded to change camps. The history of American jurisprudence is replete with once unpopular views becoming law years later. It took the Supreme Court to reverse itself over “separate but equal” and less on consensual gay sodomy. One must hope.

In the meantime, the gender variant community is savoring Friday’s decision. What exactly did Judge Robertson do?

For starters, Judge Robinson denied all government pre-trial motions to dismiss Diane Schroer’s case. He looked back favorably on Judge Grady’s view favoring Karen Ulane twenty-six years earlier – the one Judge Wood’s panel rejected. I like to think he wanted this case to be tried so the evidence would unfold in open court. That’s what happened. http://www.aclu.org/pdfs/lgbt/schroer_decision.pdf Read the decision.

Judge Robinson heard testimony as to whether “gender” is part of “sex.” Diane Schroer’s expert said it was; the government’s expert said it was not.

Schroer’s expert was Walter Bockting, Ph.D. He’s the president-elect of the World Professional Association for Transgender Health (WPATH), formerly the Harry Benjamin International Gender Dysphoria Association (HBIGDA).

The government trotted out Dr. Chester Schmidt, a professor of psychiatry at John’ Hopkins Medical School. The past chairman of that department was Dr. Paul McHugh, a transphobe who has done more damage to gender variant people than any other living person on the face of the planet.

The government likes Dr. Schmidt. He was their expert witness on transsexuality in Rhiannon O’Donnabhain’s Boston Tax Court case last year where the issue was the deductibility of SRS expenses as a bona fide medical expense.

Judge Robinson wrote that Dr. Schmidt regards gender identity as a component of ‘sexuality’ rather than ‘sex.’

Is it possible to split hairs any finer?

Sharon McGowan (ACLU) – please post Dr. Schmidt’s deposition transcript.

I’m inclined to believe Judge Robertson leaned strongly toward Dr. Bockting’s view but he wrote that deciding between Dr. Bockting and Dr. Schmidt was “not within this Court’s competence.”

I think Judge Robinson was being overly modest. More likely, he judiciously decided against touching a live third-rail and wrote instead that making such a decision was “unnecessary.”

Judge Robinson reviewed the evidence and concluded that every reason given by the Library of Congress for not hiring Diane Schroer was a mere pretext. It’s delicious.

Here are a few of my favorite quotes from Judge Robinson’s decision:

“Courts have allowed their focus on the label “transsexual” to blind them to the statutory language itself.”

“The decisions holding that Title VII only prohibits discrimination against men because they are men, and discrimination against women because they are women, represent an elevation of “judge-supposed legislative intent over clear statutory text.”

(Citing that raving, out-of-control liberal, Antonin Scalia.)


“The Library revoked the offer when it learned that a man named David intended to become, legally, culturally, and physically, a woman named Diane. This was discrimination ‘because of . . . sex.’”

What more is there to say?

Title VII is one path to nationwide gender identity and expression protection for gender variant people. In the absence of that protection, the community has sought alternative legislation to make the same point -- the federal Employment Non-Discrimination Act (ENDA.) Last September we watched the Democratic leadership throw the transsexual community under the bus when it jettisoned us from the bill.

Our leadership said they didn't have the votes. The back story is that they couldn't get the votes of the thirty newly-elected conservative Democrats whom Rahm Emmanuel engineered into office in narrowly-decided elections. No one ever says what was done to lobby these people. Rather, it's assumed they couldn't be persuaded. I'm from Missouri.

Perhaps we should just focus on working our way through the courts.