Following is a report on the first day of trial in Schroer v. Library of Congress, from ACLU LGBT Project Director Matt Coles:
Schroer’s case against the Library of Congress went to trial on Tuesday in U.S.
District Court in D.C. The basics of the
case are pretty well known. As David,
Schroer spent 25 years in the Army, and retired as a decorated full Colonel in
the Special Forces. Her specialty at the
end was counter-terrorism.
retiring, she applied for a job as a Research Specialist in Terrorism and
International Crime at the Library of Congress.
She got it. But when she told her
prospective boss that she was transitioning from David to Diane, and wanted to
start work as Diane to minimize any fuss, things changed. The Library decided that as it turned out,
she was “not a good fit” and yanked the job away. Diane came to the ACLU LGBT Project and we
not much dispute about what happened, just about what it means. First, there is a disagreement about the
law. The government insists that the law
allows it to refuse to hire someone because she or he is transgender. The ACLU says (to simplify a bit) that what
the Library did is sex discrimination because the Library was more than happy
to hire Dave, but wouldn’t hire Diane with the exact same abilities and
times, the Library has asked the judge to throw the case out on the basis that
what it did is not sex discrimination.
So far, he has refused. More
about that later.
other disagreement, more subtle but ultimately very similar, is over how people
should think about sex and gender identity.
That dispute is what has been unfolding during the trial.
trial is being held in the William Bryant Annex to the U.S. District Court in
D.C. The Annex is a new building, and a
clear attempt to get away from the “massive block” type of architecture that
defined federal buildings in Washington from the 30s through the 70s. But if the Annex presents the world a façade
of hemispheres and broken surfaces, it is no Beijing Bird’s Nest. It’s a distinct but still tentative step away
from old D.C.
trial began with an opening statement from the ACLU’s Sharon McGowan for Ms.
Schroer. She laid out Schroer’s version
of what happened, and why the government’s attempts to justify it don’t make
sense. It was to the point and easy to
its opening, the Library of Congress essentially protested having to go to
trial at all, insisting again that it has legal right to fire or refuse to hire
transgender people. The Library again
asked the judge to throw the case out, and the judge again declined.
first witness was Diane Schroer herself.
Under questioning by McGowan and on a stunningly short
cross-examination, her testimony was crisp, clear and logical. No long dissertations here. But no memory failures, artful evasions or
government double talk either. She
walked us through her military career, full of bureaucratic titles and military
operations, and made it all seem pretty understandable.
career is even more impressive than it seemed from reading the news
accounts. How many had successfully
graduated from Ranger school with her? 7
out of 325. Had she gotten any honors in
the studies that qualified her to be a Ranger, to be a Jumpmaster, to be in the
Special Forces? Actually, she made
honors in all of them.
Just what was it that she did in the
military? She did Special Operations in Haiti, where she ran the northern half of the country for a few
years. She ran de-mining operations in
southern Africa. She organized the humanitarian
aid operation once the U.S. finally responded to the genocide in Rwanda. Finally, in her
last position, she was director of a 120-person classified organization charged
with tracking and targeting high-threat international terrorist organizations. She briefed the Secretary of Defense and
usually the Joint Chiefs every two weeks.
remained calm and direct as she began to talk about herself. She described what it meant to her to be
transgender with disarming simplicity: “I didn’t understand why I wasn’t a
girl.” She talked about deciding to come
to grips with that, and devising a plan for transition with her counselor.
you listen to this careful, calm, capable woman describe her work and her life,
you realize this is the kind of person you want on your team—no, running your
team—in a crisis. How different the
world might be if the people making decisions about responding to terrorism—or
running the Justice Department for that matter—thought like she does.
approached transitioning and the Library of Congress job the same way. In the same call where she was offered the
job, she asked for a meeting with Charlotte Preece, who would make the hiring
decision. At the meeting a few days
later, she explained that she was transgender.
She said she thought she could minimize the issue by starting work as
Diane, so there would be no on-the-job transition. She’d scheduled facial surgery so that she
could make the Library’s planned start date.
She had pictures of herself presenting as a woman. She had a counselor ready to come in to
explain and answer questions.
the stand, Preece said she felt “set up.”
But the only thing Preece was “set up” to do was to make a decision on
the merits. Ms. Schroer did not inject
gender identity into the hiring process, keeping it focused on background and
ability. But once the decision on the
merits had been made, she moved immediately to tell Preece, and give her the
time and information she needed to stay focused on ability and make the hire
isn’t what happened. On the stand,
Charlotte Preece was a vivid reminder that, so very often, the face of
wrongdoing turns out to be not evil but ignorance. Under a classic surgical cross-examination by James Esseks, Litigation Director at the ACLU’s LGBT Project, Preece
basically confirmed Ms. Schroer’s story.
Schroer had the best qualifications and performed best in the
interview. Schroer was the best person
for the job. Schroer had the job; had
it, that is, until she told Preece she was transgender.
confirms she was bewildered when Schroer told her he was becoming Diane. “Why would you want to do that?” she
It is not
so hard to understand Preece’s surprise that this classic “man’s man” turned
out to be a woman. Preece had never met
anyone transgender before. But it’s at this point that ignorance turns to
wrongdoing. Preece says she worried that
Diane wouldn’t get a security clearance, that she’d lose her contacts in the
military, that she’d have no credibility working on terrorism for the
have felt that. But instead of trying to
find out if her worries were justified, she simply gave into them. There’s a legal issue here. The government is not supposed to simply
capitulate in the face of prejudice, imagined or real. But the more interesting issue is the human
failure. Preece didn’t ask Schroer’s
references—almost all of them military and Special Forces veterans—if they’d
still respect Schroer as Diane. And it
turned out, many of them already knew.
Knew and considered Diane, not Dave, at the “top of the list” when it
came to counter-terrorism.
didn’t find out if transitioning by itself created a problem with security
clearances. It turns out that it
doesn’t, and in fact Diane’s clearance—the highest—has been renewed.
Preece assumed what seemed to be her own reaction—loss of respect—on to the
military and veterans was almost comic.
It turns out that after the job was taken away, Diane created her own
consulting business. She did it with the
help of, and she is now working with, the very people Preece assumed wouldn’t
that—Charlotte Preece’s reaction to the news of Diane Schroer’s transition—is
the heart of the case. Is it okay,
today, for an employer to refuse to hire somebody who can do the job, and do it
well, because the employer doesn’t respect something about their identity that
has nothing to do with the job?
the America of the past, we’d likely have said that Charlotte Preece’s
assumptions were enough to justify taking away the job. In the past, failing to live up to society’s
expectations about who men are and who women are, would surely have been taken
as a sign of instability. But in the America we aspire to be, we won’t be willing to accept stereotypes
as shorthand for capacity. Knowing how
wrong that kind of shorthand has been, and how much people have been hurt by
it, we’ll insist on keeping our eyes on what really counts: ability.
question posed by what the Library of Congress did to Diane Schroer is just how
far we have, if you’ll pardon the expression, transitioned from the America we have been to the America we hope to be.
question about where we are on the path to a society that truly reflects our
ideals is also the question posed by the legal issue the Library keeps coming
back to. When the law says you cannot
discriminate on the basis of sex, the Library says, it means something certain,
genetic and unchangeable. It is okay to
discriminate against someone because their gender identity is different from
their genetic gender, the Library says, because gender identity isn’t part of
the careful hands of ACLU lawyer Ken Choe, also representing Ms. Schroer, Dr.
Walter Bockting, the incoming head of the World Professional Association for
Transgender Health, explained that science doesn’t support the Library. Sex as we understand it today isn’t just
chromosomes, it’s anatomy, it’s the physiology of the brain, and it is, above
all gender identity. While at one time,
we may have thought of sex as “one thing,” today we understand that sex is made
up of many things, and most profoundly, our own sense of who each of us is.
doesn’t matter, the Library insists, it’s what Congress was thinking of when it
passed the 1964 Civil Rights Act. “Everett Dirksen,” a reporter said to
me in the hall outside court, “wasn’t thinking of Diane Schroer when he helped
pass the Civil Rights Act.” “Probably true,” I said as she headed off to
meet her cameraman, “but James Madison wasn’t thinking of TV when he penned the
First Amendment either.”
issue isn’t the way someone who wrote or voted for a law was thinking it would
apply; the issue is the concept embodied in the law. What was the idea? The flip answer is that on this point,
Congress didn’t have an idea; many of those who voted to put sex into the 1964
Civil Rights Act were hoping it would kill the bill.
in 1964, as today, it is hard to believe that anyone thought sex was just about
chromosomes or even just anatomy. It was
about the whole package. The issue in
the case is how does that idea apply in a world where the package is different
than we thought in 1964, a reflection of more things than we thought, maybe not
including a lot of things we thought, maybe more fluid than we thought.
don’t have to get too deeply into the science of sex and gender to see that
what happened here is sex discrimination.
The Library may have been willing, in the abstract, to hire either a man
or a woman. But it was not willing to
hire someone who, identified by parents and doctors at birth as a man, turned
out to have the gender identity of a woman.
It was, in short, not willing to hire this person because she turned out
to be a woman and not the man people thought.
the America we aspire to be, that has to be sex discrimination.
as is sometimes the case, the legal lens may not be the best way to look at
what happened to Diane Schroer. One of
people who testified for her yesterday was Dr. Kalev I. Sepp, Deputy Assistant
Secretary of Defense for Special Operations Capabilities.
powerful testimony about how smart, strategic and intellectually focused
Schroer was as David and is as Diane. He
also told the court that several years ago, Schroer asked to see him to talk
about a big problem. When they met,
Schroer explained that he was transgender, and that he was on the path to
becoming Diane. Sepp listened, and when
Schroer finished, he said, “that’s all fine, but what’s the big problem we need
to talk about?”
who have spent their lives in the military, in Special Forces, parachuting in
to dirty little wars all over the world, may have been surprised to learn that
Dave was Diane. But after getting past
the initial surprise, they have had remarkably little trouble seeing that Diane
is the same person they’ve relied on, trusted, respected. The Library of Congress, on the other hand,
who, like Charlotte Preece, think they’ve never met anyone transgender, might
think her reaction was not only understandable, but acceptable. Diane Schroer is the powerful
counterargument. How could we let
someone this good, this dedicated, with skills we need so badly, slip through
Schroer’s story tells us that we can’t afford to live in the America of the past much longer.
For our own sake, we have to become the America we aspire to be.
– cross-posted at the ACLU LGBT Project blog.
If you want to read more about the case, you can find a summary and most of the
court papers here.