District Court Limits Scope of Title VII Transsexual Sex Discrimination Claims
On March 31, 2006, the United States District Court for the District of Columbia issued a decision making it more difficult for transsexuals to pursue sex discrimination claims under Title VII of the Civil Rights Act of 1964 based upon the theory of sex stereotyping. Schroer v. Billington, 2006 U.S. Dist. LEXIS 14278 (D.C. Dist. March 31, 2006). This decision describes the limited circumstances under which a Title VII transsexual sex-stereotyping claim remains permissible, and provides guidance concerning the factual showing such claimants must make to pursue sex discrimination claims generally.
The U.S. Supreme Court recognized the theory that employment decisions based upon sex stereotyping violate Title VII in its 1989 decision in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). In that case, a female plaintiff was permitted to pursue a Title VII sex discrimination claim based on allegations that her employer failed to promote her because she exhibited stereotypically masculine behavioral traits (e.g., she was too assertive or should have worn more feminine attire). Since Price Waterhouse, some courts have extended this approach to include transsexual claimants who allege that they have been discriminated against because they are perceived as failing to conform to gender stereotypes.
In Schroer, the plaintiff suffered from gender identity dysphoria, a condition involving a disjunction between gender identity and anatomical sex. Generally accepted treatment standards for the condition recommend a process of sex reassignment involving three distinct phases: (1) presenting oneself full-time as the gender corresponding to one’s identity; (2) hormone therapy; and (3) sex-reassignment surgery. Consistent with this protocol (and a physician’s recommendation), Schroer changed his name from David to Diane and began presenting himself as a woman in about mid-December 2004.
Before beginning sex-reassignment treatment, Schroer applied and interviewed for a position as a terrorism research analyst with the Congressional Research Service (“CRS”), an arm of the Library of Congress. When she interviewed with CRS, Schroer presented herself as a man and dressed in traditionally masculine clothing. CRS offered her the position. On December 20, 2004, however, CRS asked Schroer to return to the CRS office to meet her future colleagues and to discuss certain administrative details of the position. Schroer explained that she was being treated by a physician for gender dysphoria and planned to present herself as a woman while working at CRS. The next day, CRS advised Schroer that she was not a “good fit” for the organization and revoked the job offer.
When Schroer brought suit under Title VII, CRS moved to dismiss her complaint for failure to state a claim upon which relief could be granted. The district agreed with CRS that Schroer had failed to state a claim of discrimination based on sex stereotyping, because she alleged only that CRS’ employment decision was a “direct result of her disclosure of gender dysphoria and her announced intention to begin presenting herself as a woman.” Had Schroer alleged that she was not hired because she appeared too feminine while interviewing as a man, or that CRS viewed her as too masculine after presenting herself as a woman, she likely would have been allowed to proceed with her sex stereotyping claim. Instead, the court reasoned that Price Waterhouse and its progeny do not cover situations where the actual or potential employee attempts to conform to a certain gender. Rather, sex stereotyping claims must be based on allegations that the plaintiff was “discriminated against because of a failure to act or appear masculine or feminine enough for an employer.”
Despite this holding, the district court allowed Schroer to proceed with her sex discrimination claim based on her alleged status as a transsexual. The court theorized that Title VII’s proscription against discrimination “because of . . . sex” could encompass transsexual claimants if scientific evidence establishes that “sexual identity” is a component of an individual’s gender. That question could not be resolved on a motion to dismiss. But the court’s ruling makes clear that transsexual plaintiffs may prevail on a claim of sex discrimination if they are able to prove facts establishing both that they suffer from gender dysphoria and that multiple biological and psychological components of their sexual identity, rather than chromosome configuration alone, determine their gender.