20 September 2008

Transgender and Sex Discrimination

It is always interesting to see how judges interpret laws and whether these interpretations expand the intent of the original law or restrict it.

There are always critics who voice their concerns when it appears that judges are making law rather than interpreting it.

A recent case involving a transgendered woman, who was a highly decorated soldier as a man, and the Library of Congress in the US.
Diane Schroer was offered a position at the Library of Congress as terrorism research analyst when she was a man. This job offer was then revoked when the Library of Congress found out that David Schroer was in a period of transition from being a man and becoming a woman.

Schroer was qualified for the position, of that there seems little dispute, and had in fact been the highest rated candidate for the position. Her experience included being a special forces commander in the US Army and commanding a 120 person unit tasked with tracking terrorists.

She retired in 2004 and ultimately ended up applying for the position at the Library of Congress.

The American Civil Liberties Union took up the case and filed it in Federal Court. The suit alleged discrimination and relied upon the Civil Rights Act and in particular the provisions on sex discrimination.

The ruling of the judge pointed to direct evidence that the Library of Congress had based their hiring decision on sex stereotypes. The stereotypes here were that the Library of Congress felt that Schroer would be less capable of performing her duties as a woman than she would have if she had stayed a man. Although the testimony given in court was that the Library was worried that they would not be able to get a security clearance for Schroer in time.

The judge then went on to compare a situation where a person is denied employment because they are in the transitioning period from one religion to another.

Yet, and perhaps more importantly, this decision says that the laws as they relate to sex discrimination covers individuals who are transgendered and it also covers them during the period of transition.

I do not think that the decision expands the intent but rather clarifies that intent. It would be a difficult argument to sustain that the government's intent was to exclude people from the protections of the sex discrimination clauses in the Act.

Now that the judge has ruled in Schroer's favor the only question that remains is how should she be compensated for the discrimination that she has suffered.

When the damages award is made (assuming one will be made) I will post a postscript to this story.


Anonymous said...

I thought the jargon was "expand or narrow" the meaning of the law. Can you inform me on what you mean by your category of "clarify"??

A lawyer's vew would be much appreciated.

Rob Baiton said...


As I have been saying to other anonymous posters, you need to fess up to who you are or get a pen name so that I can distinguish you from other anonymous posters.

I really do not see the point in getting into a debate with an anonymous poster who does not have the courage of their convictions to identify themselves in some way.

I simply do not know what your motivations are for posting. The questions you are posing seem to be not-picking or stirring or a combination of the two.

More to the point, why should I bother informing you of anything or in this case justifying my choice of words?

The jargon is indeed "expand and narrow". However, I am not writing in a law journal nor I am writing a response to a student essay. If I was then I would stick to the more rigid terms of art. I am, though, voicing an opinion about a recent case, and as an opinion I can choose to use whatever words I like.

From a language point of view "restrict" would result in a narrowing of the interpretation, don't you think?

"Clarify" was a conscious choice. Clarify was chosen because it is my view that the judge was not seeking to expand the definition or the intent of the law (or to narrow it).

My view is that the judge's decision can reasonably be interpreted that transgendered people were to have been covered under the provision even if they were not explicitly so.

Expand, to my mind, would have been the judge creating rights that did not exist previously. In terms of narrowing this would mean removing rights that had previously been thought to have existed.

I do not think that the judge in this case has created a right that did not previously exist.

Semantics, I guess!

Another case of different strokes for different folks.

Hope this helps?

Get a pen name so I can distinguish you from others!

lawbugger said...

thanks a lot. But I feel that by adding or taking rights judges would be doing more than interpreting, they would be making law.....going beyond the act. I maybe wrong.

as to if this is nitpicking, I would say that is what academia is all about. Its only in blogs that we "cut corners".... but I am sure there must be better words to describe what we do...!! to use ur blog word - its just semantics.

And some more semantics for u - in taking my pen name - Lawbugger (pls unpack it as u like) .... yours truly, alice in wonderland

Rob Baiton said...


Thanks for taking a pen name. I am not going to unpack it and analyze it. I am sure you have your reasons :D

I think that I do say in the original post that the idea of expanding or restricting by judges through interpretation of laws is "judge-made law". Generally, this is whacked under the term 'judicial activism'.

No, you are not wrong. As a matter of fact, I agree with you. When a judge expands or narrows the interpretation of the law, and where this results in new rights being created or rights being extinguished (for want of a plain word), then this is indeed making law.

Most people elect parliamentarians to make their laws and not judges (or so the argument goes).

Semantics indeed.

Am I guilty of cutting corners in this here humble blog of mine, yes. I really had not thought that people were reading what I write in terms of academia. I probably need to be a little more conscious of what I say.

I guess, my blog from the outset had really been about being a release valve for me to vent / rant / write on any topic bouncing around in this noggin of mine.

The Alice in Wonderland is a nice touch to end on :D

Thanks. I am hoping that you continue to post under your pen name or if you want to revert to anonymous then sign off with "AIW" and then I will know who you are!

Enjoy your day!

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