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.
