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The United States Court of Appeals for the Sixth Circuit has held that discrimination against transsexuals is a prohibited form of sex stereotyping. An employer who discriminates against women because, for instance, they do not wear dresses or makeup, is engaging in sex discrimination that would not occur but for the victim's sex. It follows that employers who discriminate against men because they do wear dresses and makeup, or otherwise act femininely, are also engaging in discrimination, because the discrimination would not occur but for the victim's sex. Discrimination against a plaintiff who is transsexual--and therefore fails to act and/or identify with his or her gender--is no different from the discrimination directed against a woman, who, in sex-stereotypical terms, does not act like a woman. Sex stereotyping based on a person's gender nonconforming behavior is impermissible discrimination, irrespective of the cause of that behavior.
Plaintiff Diane Schroer was a male-to-female transsexual who had an extensive military background. In 2004, before plaintiff changed her legal name or began presenting as a woman, plaintiff was offered a terrorism-related policy analyst position with the Library of Congress. Before starting work, plaintiff informed the Assistant Director for Foreign Affairs, Defense and Trade that she intended to start presenting as a female and to ultimately undergo transgender surgery. The Assistant Director rescinded the offer the next day. Consequently, plaintiff sued defendant, the Librarian of Congress, asserting that she was denied employment by the Librarian of Congress because of sex, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1).
Under the circumstances, was plaintiff discriminated against on the basis of sex, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1)?
The court noted that under 42 U.S.C. § 2000e-2(a)(1), it was unlawful for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin. In this case, the court found that the plaintiff was discriminated against on the basis of sex. According to the court, the discrimination occurred in the form of sex stereotyping as evidenced by the supervisor's difficulty in understanding why a man with a military background would undergo a gender transition. The discrimination also occurred in the form of discrimination because of sex, as the evidence showed that the supervisor was enthusiastic about hiring the plaintiff until the latter disclosed her transsexuality. In refusing to hire plaintiff because her appearance and background did not comport with the decisionmaker's sex stereotypes about how men and women should act and appear, and in response to plaintiff’s decision to transition, legally, culturally, and physically, from male to female, the Library of Congress violated Title VII's prohibition on sex discrimination.