Jillian Weiss, an attorney and law professor who writes an excellent blog on transgender workplace issues recently posted an excellent article on The Bilerico Project with her thoughts on last week’s decision by the federal district court in Washington, D.C. in Diane Schroer’s sex discrimination lawsuit against the Library of Congress. In a landmark decision, Judge James Robertson held that the Library violated the federal ban on sex discrimination in employment (contained in Title VII of the Civil Rights Act of 1964) when it withdrew its previous offer to hire David Schroer, an anti-terrorism expert and former Special Forces officer, as a terrorism analyst when they learned that she intended to complete her transition and begin work as Diane. Among the arguments that the Library made in its defense was the claim that the exclusion of gender identity and expression protections from the Employment Non-Discrimination Act (ENDA) in the House of Representatives last year proved that Congress never intended the ban on sex discrimination to protect against discrimination based on gender identity. Fortunately for all of us, the court rejected that argument. However, the argument that Judge Robertson used to reject that claim is weak and, as Zoe Brain pointed out in her comment on the same article, not very convincing. There are, however, much better reasons to reject the Library’s claim, which I put into my comment on Dr. Weiss’ article:
I’m an attorney and my practice is limited to appellate work only (criminal appeals in my case, but the rules for interpreting statues are the same whether you’re talking about civil or criminal law). The argument that the exclusion of gender identity and expression from ENDA last year indicates Congress’ understanding, and intention, that sex discrimination under Title VII doesn’t cover gender identity discrimination is an obvious one. In the end, however, it’s completely bogus.
Ask yourself, how is the belief or understanding of a completely different Congress almost 45 years after Title VII was enacted relevant to what Congress intended sex discrimination to include back in 1964? It’s not the job of Congress to decide what laws they’ve already passed mean. That’s the job of the courts.
Two other important factors further undercut this argument. First, if you review the congressional record from 1964, you will see that sex discrimination was added to Title VII with the explicit intent to defeat it by convincing the majority of Congress that it was too radical to vote for. So, there’s no evidence in the record that Congress intended sex discrimination to mean anything, let alone evidence as to whether they intended “sex” to apply only to biology or to include gender identity.
Second, what happened last year was simply that a single committee of the House of Representatives sent a bill to the floor of the House that didn’t include gender identity and that the House passed that bill. It was never passed by the Senate or signed into law. Consequently, while it may be proper to say that the House Labor Committee didn’t think that gender identity discrimination should be illegal, there is no evidence that the full House or the Senate agreed, since they were never given the opportunity to vote on that question. Divining legislative intent from Congress’ *failure* to do something without any explicit up or down vote on the issue is a perilous business.
Finally, I’m no conservative by any measure, but I agree with Justice Scalia that the first place we have to look in determining what Congress intended is what they actually said. It frustrates me to no end when the courts here in Arizona agree with prosecutors that, despite the explicit language in a statute, the legislative history shows that they meant something entirely different. At some point, what the legislature or Congress actually said has to mean something.
This is not an argument that, if Congress didn’t think about the problem in 1964, Title VII shouldn’t apply to it. As one person involved with the Schroer case (it may have been Sharon McGowan, the ACLU’s lead attorney) recently said to a reporter when asked if Congress intended Title VII to apply to trans women and men, the framers of the Constitution weren’t thinking about TV either when they talked about freedom of the press in the First Amendment; does that mean it shouldn’t have the same protections as newspapers?
Change is a natural process that preexisting laws must continually adapt to. It is the difficult but absolutely necessary job of courts to determine how those laws should be applied to situations that the people who adopted them never contemplated. That doesn’t make the process illegitimate; it just makes it very, very hard.
Filed under: Commentary, Education, Law, News, Transgender | Tagged: ACLU, David Schroer, Diane Schroer, ENDA, gender identity, Jillian Weiss, Library of Congress, sex discrimination, The Bilerico Project, Title VII, transexual, Transgender, transsexual, Zoe Brain | Comments Off on Diane Schroer’s Recent Title VII Win and ENDA
TRANScend GENDER 
eQualityGiving’s Omnibus Equality Bill Proposal
eQualityGiving is proposing a bill to correct the unequal treatment of LGBT people in all areas of federal law – employment, housing and public accommodations discrimination, the American with Disabilities Act, DOMA, DADT, etc. Read about (and download) it here. Whether or not a comprehensive bill like this is ever introduced or enacted, I think it serves a useful purpose in uniting the debate on the many ways in which we are treated unequally and helping to ensure that the changes we seek are consistent.
What do you think?
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FYI, here is eQualityGiving’s email announcing its proposal:
INTRODUCING THE EQUALITY & RELIGIOUS FREEDOM ACT
Dear Abigail,
What if we asked for legal equality all at once in one comprehensive omnibus bill?
THE BLUEPRINT FOR LGBT EQUALITY
What would a bill for total legal equality look like? We asked attorney Karen Doering, a very experienced and savvy civil rights attorney, to prepare such a bill. It was presented and discussed on our listserv, which includes many of the major donors to the movement and the executive directors of all the major LGBTQ organizations.
We believe now is the time to introduce an omnibus bill.
We have prepared a section of our website with all the information about the proposed bill:
www.eQualityGiving.org/Blueprint-for-LGBT-Equality
There you can read the actual text of the bill and read the answers to the frequently asked questions. There is also a section reviewing the status of the incremental bills currently proposed. You can also post your comments directly on the site.
WHAT THE OMNIBUS BILL COVERS
1. Employment
2. Housing
3. Public accommodation
4. Public facilities
5. Credit
6. Federally funded programs and activities
7. Education
8. Disability
9. Civil marriage
10. Hate crimes
11. Armed forces
12. Immigration
INCREMENTALISM vs. OMNIBUS BILL
Some people think that an omnibus bill is too unrealistic to pursue because Congress functions in a very complex way. But the country voted for a new leader who promised major changes to the way our government functions.
We have tried incrementalism at the federal level for LGBT equality for 35 years without any results. Now is the best time to capitalize on the energy of new leadership and propose what we think change looks like.
As the Rev. Dr. Martin Luther King said:
“A right delayed is a right denied.”
Asking for an omnibus equality bill does not mean that we need to pursue it at the expense of incremental bills. Both approaches can be used simultaneously, and we encourage this strategy.
An Omnibus bill has two major benefits:
> It points out in clear legal terms all the areas in which we are not treated equally under the law. If we ask for less, we will certainly get less.
> An Omnibus bill provides a standard to which incremental victories can be compared. We may discover, for example, that even the trans-inclusive ENDA introduced in March 2007 still did not provide the same level of protections in employment that other groups receive.
SAY WHAT YOU THINK
If you believe that, in addition to incremental bills, we should also push for an Omnibus Equality Bill, tell your member of Congress, talk to your friends, and write about it on the site. All the info about the bill is here:
www.eQualityGiving.org/Blueprint-for-LGBT-Equality
For many months we have been preparing this Omnibus Equality Bill. Join us to push for it, so that we can achieve LGBT legal equality faster.
Best regards,
Juan Ahonen-Jover, Ph.D.
Ken Ahonen-Jover, M.D.
Founders, eQualityGiving
P.S. Please forward this alert to others who could be interested.
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UPDATE – 3/24/09
Recently, there has been some discussion in the blogosphere about the impact of what some believe to be a narrower definition of “gender identity” in the federal Hate Crimes Bill (HR1592) from 2007, when compared to the definition of that term in the gender-inclusive ENDA (HR2015) from that same year. (The Hate Crimes Bill defined “gender identity” as “actual or perceived gender-related characteristics,” while the inclusive version of ENDA defines it to mean “the gender-related identity, appearance, or mannerisms or other gender-related characteristics of an individual, with or without regard to the individual’s designated sex at birth. To learn about this discussion, read Kathy Padilla’s recent posts on The Bilerico Project here and here.) In a comment I left on eQualityGiving’s website, I pointed out this difference and the risk of unnecessary litigation over whether the definitions are intended to have different meanings. In response, eQualityGiving has amended their Omnibus Bill to include the same definition in all its provisions, including hate crimes. The revised version of the bill, dated March 21, 2009, is available for download on eQualityGiving’s website.
In my original post, I failed to note one huge advantage eQualityGiving’s Omnibus Bill has over even the inclusive version of ENDA. Rather than enacting a separate statute with a broader exemption for religious organizations and other provisions that differ from existing civil rights law, eQualityGiving’s bill would simply amend Title VII of the Civil Rights Act of 1964 (the federal law banning sex, race and other discrimination in employment) by adding “sexual orientation” and “gender identity” to its terms. As Karen Doering, the drafter of the Omnibus Bill, explains on the FAQ page for the bill, this approach has substantial advantages over ENDA. Having worked as an investigator of discrimination claims under Title VII and being familiar with its terms and, especially, how it has been interpreted by the courts, I see this as a major improvement over current proposals.
Filed under: Commentary, Education, equal rights, Law, News | Tagged: ENDA, equal rights, eQualityGiving.org, gay marriage, gender identity, Kathy Padilla, same sex marriage, The Bilerico Project, Transgender | 1 Comment »