According to The New York Times, White House lawyers are “quietly drafting first-of-their-kind guidelines” that would prohibit discrimination against transgender federal employees.

“The President is making a very clear statement that transgender people won’t be discriminated against,” said Mara Keisling, Executive Director of the National Center for Transgender Equality, an advocacy group working with the Obama Administration on the new guidelines. ”There is also a very important symbolic value,” she added.

The guidelines are being written in conjunction with the new same-sex partner benefits for federal employees that the President announced last week. They provide additional interpretation to civil service law barring federal supervisors from taking action against employees based on factors other than performance, including race, color, religion, sex, national origin, age, disability, marital status, political affiliation and sexual orientation.

Some conservative advocates, noting that the law already bars non-performance-based job actions, called the planned change “unnecessary political action to appease a special interest group embedded in the Obama Administration.”

This isn’t the first time transgender issues at the federal level have been in the news. As discussed previously here on the Blawg, earlier this year the Library of Congress was hit with a $500,000 discrimination verdict after it revoked the hiring of a former Army Special Forces commander when it discovered that he planned to undergo a sex change operation.

What Could This Mean For Private Employers? The President’s move could spur similar action by Congress and/or states to ban transgender discrimination in the private workplace. Stay tuned to see how this plays out.

An applicant who was denied a job after disclosing that he was in the process of becoming a woman won a discrimination lawsuit against the Library of Congress.

The Facts

David Schroer served in the U.S. Army for twenty-five years, including a stint as a Special Forces Commander leading a team that tracked international terrorists.  After retiring as a colonel in 2004, Schroer applied for a terrorism and international crime research position at the Library of Congress.

According to Schroer’s attorney, Schroer received the highest interview score of all the candidates who applied for the position.  He was offered the job in December 2004.

Before starting the job, Schroer had lunch with his new boss, Charlotte Preece.  During lunch, Schroer disclosed that he was transitioning to become a woman named Diane.  Schroer testified that after the disclosure Preece said, “Well, you’ve given me a lot to think about.  I’ll be in touch.”

Preece then put a halt to the processing of Schroer’s employment documentation.  She then allegedly expressed concern about whether Schroer’s “transitioning” would be a distraction and whether it would negatively affect his/her security clearance, contacts within the Army and intelligence community and ability to credibly represent the Library before Congress.

The next day, Preece called Schroer to inform him that the Library was withdrawing the job offer.  Preece allegedly told Schroer that “after a long and sleepless night, based on our conversation yesterday, I’ve determined that you are not a good fit, not what we want.”  Preece then filled the position with a male applicant who had a lower interview score than Schroer.

Schroer sued, claiming gender discrimination in violation of Title VII.

The Trial

In defending the Library, the Justice Department argued that Title VII neither protects transsexuals nor prohibits gender identity discrimination.  They argued that the Library had legitimate nondiscriminatory reasons for revoking the job offer, including the security clearance and distraction concerns cited by Preece.

Schroer’s attorneys argued that the reasons offered by the Library were pretextual and that it discriminated against Schroer based on gender stereotypes in violation of Title VII.

While acknowledging that several federal courts have held that Title VII does not protect transgender discrimination, U.S. District Judge James Robertson sided with Schroer.  He found ”compelling evidence” that the Library’s hiring decision was “infected by sex stereotypes.”

“The evidence establishes that the Library was enthusiastic about hiring David Schroer — until she disclosed her transsexuality,” the judge stated.  “The Library revoked the offer when it learned that a man named David intended to become legally, culturally and physically, a woman named Diane.  This was discrimination ‘because of . . . sex.’”

An upcoming hearing will determine Schroer’s remedies.  For the full text of the court’s decision, click here.  For a video interview with Schroer, click here.

The Lesson

The lesson here is simple.  While courts may take different approaches to transgender issues, the safest course is to evaluate ALL candidates based on purely nondiscriminatory job-related criteria.

The US Court of Appeals for the Tenth Circuit has rejected the claim of a transsexual bus driver that his/her firing was discriminatory. In doing so, the court held that transsexuals are not within the classes of employees protected from discrimination by Title VII.

The plaintiff, Michael Etsitty, suffers from Adult Gender Identity Disorder. Etsitty was born a biological male but considers himself a woman.

During training, Etsitty identified himself as a male and used the men’s restroom. After he was hired, however, Etsitty informed his supervisor that he is a transsexual and that he would be undergoing gender reassignment surgery. Etsitty started wearing makeup, jewelry, acrylic nails, identifying himself as “Krystal” and using the women’s restroom.

The bus company, citing liability concerns over a biological male using the women’s restroom, fired Etsitty. Etsitty sued, claiming gender discrimination.

The court denied Etsitty’s claims. First, it refused to recognize transsexuals as a protected class, stating that “like all other employees, such protection extends to transsexual employees only if they are discriminated against because they are male or because they are female.”

The court also rejected Etsitty’s argument that the bus company fired him for not conforming to male gender stereotypes. The court found no evidence that the company had anything other than a legitimate nondiscriminatory liability concern for firing him.