ABA Journal - February 2009

THE NATIONAL PULSE

Free to Be
Recent decisions show growing
acceptance of transgender rights

BY ANNA STOLLEY PERSKY

national origin, does not specifically include transgender people.

Courts historically have declined to interpret the law as extending employment protection to transgender employees, reasoning that discrimination based upon sex applies to biological men and women and not to those who have changed their sex or who are in the process of doing so.

IN 2005 THE GEORGIA GENERAL ASSEMBLY HIRED Glenn Morrison to edit bills and resolutions in the Office of Legislative Counsel. Two years later, Morrison announced his intention to become a woman and was promptly fired. Morrison, now

Vandy Beth Glenn, was shocked. Glenn says she was told her gender transition would make other employees uncomfortable. “I really didn’t see how it could be a problem for anybody,” Glenn says. “I spent my workday in a windowless room, hidden away from the public. I turned the work around, and I did it well.”

Last July, Glenn sued the Georgia General Assembly for employment discrimination. In its motion to dismiss, the state assembly argued that Glenn, as a transgender person, is not a member of a protected class.

While the judge has yet to rule on the defense motion, Glenn may have reason for optimism. In the last year, at least two courts have ruled in favor of transgender individuals in cases that some legal scholars say show a legal and societal climate that is recognizing their unique issues.

“We’ve seen a bit of a reversal of the historic exclusion of transgender people under state and federal law,” says Jennifer Levi, a professor at Western New England College School of Law in Springfield, Mass., and the director of the Gay & Lesbian Advocates & Defenders’ Transgender Rights Project in Boston. “Transgender people have made a lot of progress, but much more remains.”

Title VII of the Civil Rights Act of 1964, which for-
bids discrimination on the basis of race, color, religion or

WIDENING TITLE VII PROTECTIONS

BUT IN A GROUNDBREAKING CASE LAST FALL, SCHROER V.
Billington, a federal district court judge in Washington,
D.C., ruled that the Library of Congress violated Title
VII when it rescinded a job offer upon learning the ap-
plicant was a transgender person. David Schroer was
a U.S. Army Special
Operations colonel
leading a classified
anti-terrorism unit be-
fore retiring and under-
going facial surgery to
help him transform into
a woman, Diane. While
preparing for his sex
change, Schroer ap-
plied for and received
a job as a terrorism
analyst at the Library
of Congress. But the
government revoked
its job offer when it
learned of his inten-
tions.

Schroer sued, and the case went to trial. A spokesman for the Library of Congress declined comment, citing ongoing litigation. However, lawyers from the U.S.

Attorney’s Office in Washington, D.C., arguing on behalf of the Library of Congress, asserted in court that “there is no basis to conclude that transsexuals are, or were ever intended to be, a protected class under Title VII.”

Additionally, they argued that Schroer failed to prove bias against her based upon gender. “Plaintiff cannot prove that she was disparately treated merely by showing that a gender-conforming, nontransgender male was selected instead of her for the terrorism analyst position. Rather, the proper inquiry is whether plaintiff was treated disparately because of her ‘status’ as a woman when presenting herself as a female,” wrote the U.S. Attorney’s Office lawyers.