Judge suggests trans exclusion from ENDA may impact Title VII protection

Ann Rostow’s excellent Bay Times article gives details and context. After transwoman Diane Schroer was denied a job at Congressional Research Service when she told them she would be reporting at work as a female,

Schroer sued in federal court under the aforementioned Title VII, alleging that her job was revoked due to impermissible sex discrimination. The government asked U.S. District Court Judge James Robertson to dismiss the suit, based on the fact that Title VII doesn’t ban discrimination based on transgenderism. Judge Robertson declined, pointing out that Price Waterhouse [the 1989 Supreme Court precedent] might apply, and also wondering in a court memo whether Title VII’s ban on “sex” discrimination might be interpreted to ban discrimination against transgendered people based simply on the plain language of the statute….

The bottom line is good news for Schroer. Robertson ruled that her suit could proceed based on the possibility that she could prevail under Price Waterhouse and its ban on gender stereotyping. But Robertson then rejected the idea that Title VII might outlaw trans bias on its face. Why? Because of the trans-less ENDA that recently passed the House of Representatives.

“At the time of my 2006 opinion,” wrote Robinson, referring to his initial memo on the case, “there was no relevant legislative history as to Title VII’s relationship to discrimination on the basis of sexual identity. That is no longer the case. In recent months, a bill that would have banned employment discrimination on the basis of both sexual orientation and gender identity was introduced in the House of Representatives. An alternate bill that prohibited discrimination only on the basis of sexual orientation was also introduced. The House ultimately passed the version that banned discrimination only on the basis of sexual orientation.

“…Even in an age when legislative history has been dramatically devalued as a tool for statutory interpretation,” Robertson went on, “one proceeds with caution when even one house of Congress has deliberated on a problem and, mirabile dictu, negotiated a compromise solution.”

Ouch. So much for the argument against trans inclusion on the grounds that transfolk are already protected. Thanks, Barney Frank (and thanks, HRC) for a ‘compromise solution’ that compromises existing protections.

jon