Diane Schroer’s Recent Title VII Win and ENDA

Jillian Weiss, an attorney and law professor who writes an excellent blog on transgender workplace issues recently posted an excellent article on The Bilerico Project with her thoughts on last week’s decision by the federal district court in Washington, D.C. in Diane Schroer’s sex discrimination lawsuit against the Library of Congress.  In a landmark decision, Judge James Robertson held that the Library violated the federal ban on sex discrimination in employment (contained in Title VII of the Civil Rights Act of 1964) when it withdrew its previous offer to hire David Schroer, an anti-terrorism expert and  former Special Forces officer, as a terrorism analyst when they learned that she intended to complete her transition and begin work as Diane.  Among the arguments that the Library made in its defense was the claim that the exclusion of gender identity and expression protections from the Employment Non-Discrimination Act (ENDA) in the House of Representatives last year proved that Congress never intended the ban on sex discrimination to protect against discrimination based on gender identity.  Fortunately for all of us, the court rejected that argument.  However, the argument that Judge Robertson used to reject that claim is weak and, as Zoe Brain pointed out in her comment on the same article, not very convincing.  There are, however, much better reasons to reject the Library’s claim, which I put into my comment on Dr. Weiss’ article:

I’m an attorney and my practice is limited to appellate work only (criminal appeals in my case, but the rules for interpreting statues are the same whether you’re talking about civil or criminal law). The argument that the exclusion of gender identity and expression from ENDA last year indicates Congress’ understanding, and intention, that sex discrimination under Title VII doesn’t cover gender identity discrimination is an obvious one. In the end, however, it’s completely bogus.

Ask yourself, how is the belief or understanding of a completely different Congress almost 45 years after Title VII was enacted relevant to what Congress intended sex discrimination to include back in 1964? It’s not the job of Congress to decide what laws they’ve already passed mean. That’s the job of the courts.

Two other important factors further undercut this argument. First, if you review the congressional record from 1964, you will see that sex discrimination was added to Title VII with the explicit intent to defeat it by convincing the majority of Congress that it was too radical to vote for. So, there’s no evidence in the record that Congress intended sex discrimination to mean anything, let alone evidence as to whether they intended “sex” to apply only to biology or to include gender identity.

Second, what happened last year was simply that a single committee of the House of Representatives sent a bill to the floor of the House that didn’t inlcude gender identity and that the House passed that bill. It was never passed by the Senate or signed into law. Consequently, while it may be proper to say that the House Labor Committee didn’t think that gender identity discrimination should be illegal, there is no evidence that the full House or the Senate agreed, since they were never given the opportunity to vote on that question. Divining legislative intent from Congress’ *failure* to do something without any explicit up or down vote on the issue is a perilous business.

Finally, I’m no conservative by any measure, but I agree with Justice Scalia that the first place we have to look in determining what Congress intended is what they actually said. It frustrates me to no end when the courts here in Arizona agree with prosecutors that, despite the explicit language in a statute, the legislative history shows that they meant something entirely different. At some point, what the legislature or Congress actually said has to mean something.

This is not an argument that, if Congress didn’t think about the problem in 1964, Title VII shouldn’t apply to it. As one person involved with the Schroer case (it may have been Sharon McGowan, the ACLU’s lead attorney) recently said to a reporter when asked if Congress intended Title VII to apply to trans women and men, the framers of the Constitution weren’t thinking about TV either when they talked about freedom of the press in the First Amendment; does that mean it shouldn’t have the same protections as newspapers?

Change is a natural process that preexisting laws must continually adapt to. It is the difficult but absolutely necessary job of courts to determine how those laws should be applied to situations that the people who adopted them never contemplated. That doesn’t make the process illegitimate; it just makes it very, very hard.

(Crossposted on TranscendGender.)

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Dance

I Wish I Could Speak Like Music

I wish I could speak like music.

I wish I could put the swaying splendor
Of the fields into words

So that you could hold Truth
Against your body
And dance.

I am trying the best I can
With this crude brush, the tongue,

To cover you with light.

I wish I could speak like divine music.

I want to give you the sublime rhythms
Of this earth and the sky’s limbs

As they joyously spin and surrender,
Surrender
Against God’s luminous breath.

Hafiz wants you to hold me
Against your precious
Body

And dance,
Dance.

• The Gift: Poems by Hafiz, The Great Sufi Master, Translations by Daniel Landinsky, p. 305.
  

This is what dance means to me: It is prayer. It is devotion. It is meditation. It is celebration. It is communion with God. Even at its most mundane, it is joy. Would you like to dance?

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CBS Sunday Morning: The Sex Change Capital of the U.S.

On Sunday, September 7, CBS Sunday Morning did a fairly long story on Trinidad, Colorado, the home of Dr. Marci Bowers, one of the leading sexual reassignment surgeons in the U.S. I don’t like the phrase “sex change” but the story is pretty straight forward and not at all sensationalistic. I was in Trinidad in July to support my friend Mari through her surgery. It’s a nice little town, similar to many other mountain towns I’ve visited in the West; the people were friendly; and the care at the hospital was, for the most part, excellent. Marci is friendly and personable but, like most doctors, entirely too busy. From what I’ve seen, the surgical results were excellent, with only a few minor complications. Here’s the video:

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If you’d like to learn more about Trinidad and how it has dealt with the attention that having a leading SRS surgeon (actually, for many years, the only SRS surgeon in the U.S.) in its midst, there’s a new documentary out called Trinidad that is now touring the U.S. Look for it at your local LGBT film festival.

Cross-posted from TranscendGender.

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Restroom Access and Public Accommodations Laws

Over on TranscendGender, Amber posted a blog about her transition at work and the dilemma of how to deal with the private businesses she visits as part of her job.  In particular, she wondered how to deal with the question of which bathroom to use at places where she is known from before her transition.  As we all know, bathroom access is one of the most sensitive issues these days in the battle for equal treatment for all transgender people, and one which our opponents are exploiting by saying that prohibiting discrimination against trans people in allowing access to public accommodations means the the dreaded, and clearly perverted, “man in a dress” will use these laws as an excuse to go into women’s restrooms and abuse every woman who enters, especially little girls.  (The truth, of course, is that there is nothing to prevent that from happening right now, so these laws change nothing in that regard.)  In her comment to Amber’s blog, Renee pointed out that private businesses are private property and that the owner can exclude anyone they wish by invoking laws against trespassing.  Her comment, however, didn’t factor in the effect of public accommodations laws.  So, I responded with the following:

While what Renee said about private businesses is basically true, they do not, in fact, have unlimited discretion to exclude people.  Virtually every state has a law that prohibits sex, race and other discrimination in public accommodations.  Thus, businesses like theaters, shopping malls, retail stores, hotels, and restaurants that offer their goods and/or services to the public are subject to these restrictions even on their private property.  Moreover, both state and federal courts have held that discrimination because a person doesn’t fit gender stereotypes, such as a butch lesbian or a fem gay man or even a trans woman or man, is illegal sex discrimination.  Here in Arizona, a friend of mine filed a civil rights complaint with the state Attorney General’s office against a night club for banning her and all other trans women because some women were complaining about their use of the women’s restroom.  The AG accepted and investigated the complaint as a valid allegation of sex discrimination; in other words, they accepted this interpretation of Arizona’s law.  Eventually, the complaint was settled by agreement (the nightclub owner dropped the ban and put a gender neutral sign on a preexisting single stall bathroom), so there is no administrative or judicial ruling affirming that this was, in fact, illegal sex discrimination under Arizona law.  Nonetheless, this remains a valid basis for asserting our rights if a private business that qualifies as a “public accommodation” treats us differently because we aren’t as masculine or as feminine as they think we should be.

The ban on sex discrimination in access to public accomodations applies to restrooms, just as it does to every other part of a business open to the public.  Many people believe that there are laws stating that only men can use the men’s room  and vice versa.  In fact, as far as I know, no state has such a law, although some cities may.  Absent such a law, which may be subject to constitutional challenge, the business cannot discriminate against anyone in allowing access to restrooms based on their sex; in other words, women can legally use the men’s room and vice versa.

When Amber goes to one of these businesses as a contractor, instead of a customer, her status is different and the public accommodations protections may not apply to her on that visit.  If, however, she comes back as a customer, e.g., to see a movie, they cannot discriminate against her because she is trans under this theory.

A final caveat:  Although many courts have accepted this interpretation of sex discrimination statutes, others have not and instead have held that it does not violate such laws to exclude someone because she or he is trans.  Most of those cases predate a 1989 U.S. Supreme Court decision (Price Waterhouse v. Hopkins, 490 U.S. 228) holding that discrimination based on gender stereotypes violates the federal ban on sex discrimination in employment.  The current, although still somewhat uncertain, trend in the case law is to accept and apply this theory to discrimination against trans women and men.  Of course, the adoption of local, state and federal laws explicitly banning discrimination on the basis of gender identity or expression eliminates the need to rely on this theory and makes our protections much more secure.

In other words, although our protection against discrimination under existing law is uncertain, we are not wholly without remedy when we are unfairly treated because of who we are.

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