CHARLIE JANE ANDERS
Five days before Christmas 2004, Diane Schroer went to the Library of Congress to talk to her new boss. I picture it being one of those ugly DC winters, where the cold air from the Potomac stings your cheeks and gets inside your winter clothes. Schroer must have been doubly uncomfortable, because she was wearing men’s clothing that no longer felt right. A twenty-five-year decorated veteran, Schroer had just been hired to work at the Congressional Research Service, and she was here to come out as a transgender woman.
Schroer was already midtransition but hadn’t yet legally changed her name or gender marker, which is why she’d interviewed for the job under her assigned-at-birth name. And she already had facial feminization surgery scheduled before the job was supposed to begin. She explained all of this to the CRS’s Charlotte Preece, who took in all this information and then just said, “You’ve given me a lot to think about.”
Preece immediately set about the process of pulling the plug on Schroer’s job offer, on the (probably bogus) theory that Schroer would need a whole new security clearance as “Diane” rather than keeping the security clearance she’d already obtained under her old name. Preece also felt that Schroer would be distracted by transitioning, plus both Schroer’s old military contacts and Congress might not take her seriously as a transwoman.
Preece told Schroer, “You are putting me and CRS in an awkward position.”
With the help of the ACLU, Schroer sued the CRS for job discrimination—and won, helping to reinforce that transpeople are protected under Title VII’s prohibitions on sex discrimination. This was a big deal, because some other high-profile cases (like Ulane v. Eastern Airlines, 1984) had gone the opposite way, with judges insisting that Title VII applied only to people being discriminated against for their assigned-at-birth gender.
In Schroer v. Billington, Judge James Robertson dismissed all of the security concerns and other issues as “pretextual.” And he held that discrimination against transpeople was “sex stereotyping,” similar to the famous case of Price Waterhouse v. Hopkins (1989), where a female employee was discriminated against for being insufficiently feminine. He also held that discriminating against someone because that person is transitioning from one sex to another is necessarily sex discrimination prohibited by Title VII. (Robertson compares this situation to a recent convert from Christianity to Judaism facing religious discrimination.)
A few years after Schroer, in 2011, the ACLU won another major victory for transpeople, striking down a Wisconsin law, the Inmate Sex Change Prevention Act, which prohibited the use of any state funds to treat transprisoners with hormones or surgery. Wisconsin argued that because prisons were providing antidepressants and counseling to transprisoners, the law should stand. But an appeals court ruled that this would be similar to giving painkillers and therapy to cancer patients and calling it a day.
When I started to transition, I knew the law wasn’t on my side. California hadn’t yet passed a law protecting transpeople from discrimination, and the courts were spitting out rulings like Ulane v. Eastern Airlines all the time. If I wanted to rent an apartment, get a job, or even just walk on the street in peace, I had to depend on the enlightened goodwill of others. Even now, trans and nonbinary people (especially people of color) have much higher rates of unemployment and homelessness and have much worse access to health care and other services.
I was turned down for a couple of jobs explicitly for being trans. (In both cases, they had told me over the phone that I had the job, and then they met me in person, and suddenly I had given them a lot to think about.) I was turned down for health insurance too because being trans was a “preexisting condition.”
So victories like Schroer matter a lot. It matters that employers and prisons will think twice before discriminating against transpeople—but also the reasons for these rulings matter. Judge Robertson’s ruling in Schroer calls out other judges who had ruled that Title VII couldn’t include transpeople for having too narrow a view of the statute’s intent (quoting, of all people, Antonin Scalia, as propounding an expansive view of sex discrimination).
Back in the day, the ACLU was fighting just for people to appear in public in clothes that were at odds with their assigned gender—because even having a gender-nonconforming appearance was often illegal, under local “cross-dressing” ordinances. And according to ACLU attorney Chase Strangio, these cases were usually fought on the grounds of “free speech” and “due process” rather than sex discrimination.
For example, in 1985, the ACLU of Hawaii intervened on behalf of a group of LGBTQAI+ people who wanted to hold a Miss Gay Molokai pageant featuring contestants in drag. Some local churches objected, and Maui County mayor Hannibal Tavares decided to ban the pageant, calling it “unwholesome and inappropriate.” But the ACLU fought Tavares in court and won. (The ACLU attorney in this case, Dan Foley, later won same-sex marriage rights in Hawaii and went on to become a judge.)
I can’t imagine living in a world where I could be arrested just for being in a dress despite the label a doctor slapped on me when I was born. Or when a harmless drag show could be outlawed. (In the Miss Gay Molokai case, people expressed a concern that the mere existence of a drag performance on the island “might spread AIDS.”)
But I also can’t believe that in my lifetime, there was a moment when my identity as a transwoman could only have been defended as a free speech issue—as if I’m making some kind of a point or trying to express something. It’s not enough for me to exist; I have to be saying something. And if my gender presentation is a form of speech, then I’m clearly giving people a lot to think about just by occupying physical space.
In the 1990s and early 2000s, the ACLU started taking on more cases involving people being disciplined at work for “being gender-nonconforming,” says Strangio, plus more cases about student rights and employment discrimination. And the ACLU increased its already strong focus on the rights of transprisoners. But it wasn’t until the past several years that the ACLU has been pursuing more sex discrimination cases involving trans-plaintiffs.
And now that the federal government is trying to erase transpeople in as many ways as possible—making it easier to deny us health care, keeping us from serving in the military, allowing discrimination based on religion, and even working to define gender as based on “biological sex”—these fights are even more important than before. And that’s why I’m proud to be a supporter of the ACLU.
I’m not here to give you a lot to think about. My body is not a statement, or an inconvenience, or a threat to anyone’s security. My gender isn’t a mistake, or a disruption, or a rebellion against biology, and I don’t need anybody’s tolerance for my self-expression. Put simply, this is about bodies and personhood and transpeople’s right to live our lives. When some bodies are illegal, when people are forced to choose either having basic rights or being their authentic selves, then everybody is diminished.
Trans and nonbinary people have only recently been recognized as having basic rights, and we’ll have to fight to keep them. But when those battles come, at least we’ll be standing on high ground thanks to the valiance and dedication of those who came before us.