Today, in the first ever victory directly on this point, the ACLU won a federal court decision holding that discrimination against a transgender person constitutes per se sex discrimination in violation of Title VII. In Schroer_v_Billington, Judge James Robertson of the U. S. District Court for the District of Columbia ruled that the Library of Congress discriminated against Diane Schroer when it rescinded a job offer to her after Schroer disclosed that she was transitioning from male to female.
After a full trial (described in previous posts here and here), the judge found that Schroer should prevail on both of the legal theories offered by her lawyers. First, the judge found that there was "compelling evidence that the Library's hiring decision was infected by sex stereotypes." On that basis, Schroer was entitled to relief under the line of cases beginning with Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), which created the sex stereotyping doctine. In that case, the Court found that Title VII was violated when a woman was denied a job after being told to wear make-up and take a course at charm school. Evidence in the Schroer trial established that the negative reaction to Schroer grew out of her not fitting gender stereotypes by virtue of her decision to change genders.
More important was the second theory: that discrimination based on gender transition is literally discrimination based on sex. Schorer's lawyers argued, and the judge agreed, that gender identity is a component of sex and therefore discrimination based on gender identity is sex discrimination. This might sound like a simple proposition, but previous federal courts have "carved [transgender] persons out of the statute by concluding that 'transsexuality' is unprotected by Title VII."
The Schroer court held that just as discrimination against converts from one to faith to another is still discrimination based on religion, so too discrimination against transgender persons is still sex discrimination. Although doubtless Congress did not have transgender persons in mind when Title VII was enacted in 1964, the court found that the plain text of the statute covers this situation.
This is huge, both legally and politically. It's an enormous breakthrough in the law. The caveat is that it is a trial-level court decision, and the Justice Department (which represents all federal agencies in court) is likely to appeal it. It's impossible to predict what the outcome of the appeal will be. One cause for optimism is that the decision is based on a full factual record, including expert testimony on the key issue of gender identity being considered a component of sex. That will make it more difficult (though not impossible) for the court of appeals to reverse it. Also, because the case does not involve a challenge to the validity of a federal statute, but only to the lawfulness of one hiring decision, the Justice Department could elect not to appeal (perhaps under a new AG?).
Politically, it recuperates the argument that Title VII already prohibits discrimination against transgender persons. Yes, that's right, irrespective of ENDA. In fact, the Justice Department argued in this case that the passage of ENDA last year by the House of Representatives without gender identity protection signaled congressional intent not to protect transgender persons. Maybe, said Judge Robertson, or maybe Congress believes that Title VII, properly interpreted, solves the problem. In any event, the language of Title VII settled the question for him. This issue, too, of the legal consequence, if any, of the House vote last year could be re-argued if there is an appeal.
In the meantime, this is a major victory. Mucho, mucho congratulations to lead counsel Sharon McGowan who, together with James Esseks and Ken Choe, represented Diane Schroer!