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Transsexual Plaintiff Wins Title VII Sex Discrimination Lawsuit

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October 21, 2008

The U.S. District Court for the District of Columbia recently ruled that a job applicant who claimed she was not hired because she underwent a sex change was discriminated against in violation of Title VII. See Schroer v. Billington, No. 05-1090, 2008 WL 4287388 (D. D.C . Sept. 19, 2008). In doing so, the court became among the first in the nation to explicitly recognize transsexuality as a potential discrete protected category under Title VII.

The plaintiff, Diane Schroer, was in the process of transitioning from male to female when she applied for a position with the Library of Congress. During the application process, she identified herself as David Schroer. After Schroer accepted a job offer from the Library of Congress, she met with her future boss to discuss her ongoing gender transition. The day after the meeting, the Library of Congress rescinded its job offer, explaining that Schroer was not "a good fit."

Although Title VII makes no mention of transsexuality, it prohibits discrimination "because of sex." In her lawsuit, Schroer argued that the Library of Congress discriminated against her because of her sex, in that it refused to hire her because she failed to conform to sex stereotypes, and because of her gender identity, which she equated to her "sex." The court found that Schroer could sustain claims under both theories. While other courts have recognized claims by transsexuals under the "sex stereotyping" theory, the court, in also adopting the position advanced in Schroer’s second theory, departed from prior courts' statutory interpretation that Title VII "only prohibits discrimination against men because they are men, and discrimination against women because they are women." Instead, the court held that discrimination "because of sex" encompasses discrimination "because of a change of sex."

Whether other courts will follow this decision remains to be seen. However, certain states and localities, including Illinois, already prohibit discrimination on the basis of gender identity. Further, this case has garnered national attention, and will likely encourage plaintiffs' lawyers to file similar lawsuits. Consequently, employers may wish to assume that transsexual employees or applicants are protected by Title VII and other non-discrimination laws and avoid acts that could be construed as unlawful discrimination against such individuals.

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