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Transsexuals and Title VII
April 03, 2006 by Ross Runkel at LawMemo

Diane (formerly David) Schroer claims the Library of Congress didn't hire her because she is a transsexual. She changed from male to female. Schroer claims the Library violated Title VII by discriminating against her "because of sex."

There are currently three ways to handle such a case:

1. The tradition view is that Title VII does not forbid discrimination because of transsexuality because that's not discrimination "because of sex."
2. Recently there has been a theory that such discrimination can come under Title VII because it is "sexual stereotyping" as discussed in Price Waterhouse v. Hopkins, 490 US 228 (1989), but that's a pretty shaky theory.
3. A federal district judge in Schroer's suit now says it is possible that a transsexual can show discrimination "because of sex" without relying on sexual stereotyping. The judge denied the employer's motion to dismiss for failure to state a claim, saying that there are facts that Schroer could prove that would establish discrimination "because of sex." Schroer v. Billington (D DC 03/31/2006)

My view: I've got a fourth theory. Let's reason this by analogy to religion discrimination. If Schroer had changed from being a Catholic to being a Mormon, and the Library had refused to hire her for that reason, then I think that would be a clear-cut case of discrimination "because of religion." Schoer changed from being a man to being a woman, so discrimination on that basis is discrimination "because of sex."

Read more about Schroer v. Billington:

• Workplace Prof Blog - Transexual Can Sue for Sex Discrimination Under Title VII
• Jottings By An Employer's Lawyer - Transsexuality - A Third Way
• Leonard Link - Trans Paradigm Shift Under Title VII? (Lengthy, thoughtful comments from an expert on sexuality and the law)

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