What Has Sex Got to Do With It, Ex-Man Asks Court: Ann Woolner

Commentary by Ann Woolner

Sept. 11 (Bloomberg) -- For a manly man, you could do worse than David Schroer, if you will pardon the sexual stereotype.

A full colonel when he retired from the Army in 2004 at the age of 47, Schroer qualified as an Airborne Ranger with 450 parachute jumps and won too many medals to name. He had commanded Special Forces in Haiti and southern Africa.

After the terrorist attacks on the U.S. seven years ago today, he was picked to create and direct a classified, interagency group to track terrorism and plan U.S. responses. He briefed officials up the line to Vice President Dick Cheney.

Schroer seemed a perfect fit when, in retirement, he applied for a job at the Library of Congress analyzing terrorism and international crime for Congress.

His high-powered references praised him and he wowed the Library of Congress interviewers. His qualifications made him ``significantly better'' than the other applicants, Charlotte Preece, the library manager who decided to hire him, told Schroer over lunch in 2004.

But there was one more bit of information Schroer said Preece should know. He told her he was in transition, gender- wise, and would be coming to work as Diane Schroer.

``Why in the world would you want to do that,'' a stunned Preece asked, according to Schroer.

He explained why and handed her pictures of himself in women's clothes, makeup and hairstyle in hopes of showing that Diane Schroer would look perfectly professional.

But Preece saw only a man dressed as a woman, she would later say. And within 24 hours, she had called Schroer to say he wasn't ``a good fit'' for the job, after all.

Same credentials. Same knowledge. Same person. Different sex.

Case of Discrimination

``That's discrimination,'' U.S. District Judge James Robertson said when trying Schroer's lawsuit last month in Washington.

``The question is whether it's unlawful discrimination,'' he noted, posing the question he must now answer. His decision, after a four-day trial that ended Aug. 22, might come any day now.

Federal law forbids employers to deny jobs, promotions or pay based on sex. Schroer's legal problem is that the law doesn't specifically cover transgender people, a point that lawyers for the library keep arguing.

Schroer and her lawyers at the American Civil Liberties Union want Robertson to say that gender identity is such a crucial element of sex that, in forbidding sex discrimination, Congress implicitly outlawed transgender discrimination, too.

More on that later.

Sexual Stereotype

In the meantime, it's worth noting that transgender people claiming sex discrimination have won in federal court on a different ground. They used a U.S. Supreme Court decision that says employers can't deny jobs or pay because an employee fails to fit a sexual stereotype. Sex change wasn't an issue.

In that case, a Price Waterhouse manager, Ann Hopkins, claimed she had been passed over for partnership because she appeared too masculine.

``Walk more femininely, talk more femininely, dress more femininely, wear make-up,'' one of the partners advised her.

That sort of sexual stereotyping can't legally drive employment decisions, the Supreme Court said in 1989, finding it amounts to sex discrimination.

That holding formed the basis of two rulings by the Cincinnati-based 6th U.S. Circuit Court of Appeals. The court sided with a Salem, Ohio, firefighter claiming on-the-job retaliation for becoming too ``feminine'' while transitioning out of manhood.

Insufficient Masculinity

In the other, a Cincinnati police sergeant was demoted for insufficient masculinity while changing from male to female.

If the judge decides sexual stereotyping drove the decision not to hire Schroer, she will probably win her case.

But her lawyers are pushing another claim, too, which would cover all transgender people, whether the victims of stereotyping or not.

``The term sex can and should be understood as including gender identity,'' ACLU lawyer Sharon McGowan argued to the judge last month. So any bar on sex bias would also cover transgender discrimination.

She pointed to scientific studies and testimony that say biology determines gender identity. An expert in the field testified that of the nine factors that say which sex we are, gender identity trumps them all.

A Different View

The library's expert took a different view, stressing that no one knows precisely how biology determines gender identity. He put more weight on chromosomes than on the person's own sense of gender.

Not waiting for science to catch up, more than a dozen states and scores of local governments specifically outlaw various forms of discrimination against transgender people.

Businesses and law firms forbid it, too. Of 583 of the nation's largest companies surveyed, 66 percent bar job discrimination based on gender identity, according to the Human Rights Campaign, which advocates for gay, lesbian, bisexual and transgender people.

We are talking 3M Co. and BP America, Boeing Co. and Coors Brewing, Goldman Sachs Group Inc and Morgan Stanley. All the big automakers, too.

But not the federal government.

The Schroer case is ``going to have a major effect on shaping what other courts do,'' says Julie Greenberg, who teaches law at Thomas Jefferson School of Law in San Diego and researches legal issues surrounding gender and sex.

You don't have to be a scientist or a lawyer to know this about the Schroer case. The government turned down an applicant devoted to serving the country and honored for excelling at it.

And the Library of Congress, and Congress itself, missed out on the best applicant for a critically important job for no good reason.

(Ann Woolner is a Bloomberg news columnist. The opinions expressed are her own.)

To contact the writer of this column: Ann Woolner in Atlanta at awoolner@bloomberg.net.