Wednesday, September 24, 2008

Implications for Title IX In Transgender Plaintiff's Victory in Landmark Title VII Case?

Last week a federal district judge in D.C. held that the Library of Congress unlawfully discriminated against Diane Schroer when it rescinded the job offer made to her prior to learning of her plans to transition from male to female. The ACLU attorneys who represented Schroer advanced and prevailed on two theories to explain why she should win under Title VII, the federal statute that prohibits employment discrimination on the basis of sex (among other categories, but not gender or gender identity). First, invoking Price Waterhouse v. Hopkins, in which the Supreme Court held that discrimination on the basis of gender nonconformity constitutes sex discrimination (at least in some cases), they argued that the Library's decision was unlawfully motivated by Schroer's failure to conform with stereotypical male appearance and behavior. Second, they argued that discrimination against Schroer because of her (trans)gender identity directly constitutes discrimination on the basis of sex.

The judge's decision to agree with the ACLU's first argument is good news because it joins and many courts that have read Price Waterhouse broadly to prohibit employers from requiring employees to conform with sex stereotypes, in contrast to some courts that have read it narrowly to prohibit employers from doing so only when the employee's compliance would also result in a negative consequence on the employee. (Adopting this reasoning, a court could hold that Schroer could not recover on a sex stereotyping theory because no negative employment consequence would have befallen her if she had decided to continue to present as David). The more decisions that adopt a broad view of Price Waterhouse, the easier it will be for plaintiffs to argue that those who invoke the narrow reading are outliers.

The court's decision to agree with the ACLU's sex theory is great news because it is the first time a court has held that discrimination against transgender employees is sex discrimination per se. The court used a helpful analogy to explain why this is so. Take an employer who doesn't discriminate against either Christians or Jews, but is biased against religious converts and fires an employee from converting from one to the other. Surely this is discrimination "on the basis of religion." Similarly, the court reasoned, an employer who hires men and women on equal terms, but won't hire a person who is or has transitioned from one sex to the other is discrimination on the basis of sex.

What implications might this decision have for Title IX plaintiffs? Title VII cases are often invoked by courts deciding Title IX issues, so Title IX plaintiffs might invoke the Schroer case to support arguments in support of gender nonconforming and transgender students and student-athletes (especially if Schroer is upheld on appeal, if there is one, or if it is cited favorably by other courts). For example, a plaintiff like Jennifer Harris, who had alleged that she was kicked off the Penn State basketball team for essentially being too butch, could have included this case among others to support her argument that she was penalized for failing to conform to her coach's stereotypes about appropriate dress and behavior for women. Even more significantly, the novel second part of the decision could provide support to transgender students who might want to use Title IX to challenging discrimination in the designation of dorms, facilities (see, e.g.), sports teams, etc., that fail to accommodate them.