Earlier this week, the bench trial in Schroer v. Library of Congress began. Ms. Schroer, the transgender Plaintiff alleges that the Library of Congress engaged in sex discrimination in violation of Title VII by refusing to hire her as an anti-terrorism expert. Last month, the Dsitrict Court judge issued a terse order denying summary judgment to the Defendant and allowing the case to proceed. This ruling raises the question as to whether Title VII of the U.S. Civil Rights Act of 1964 is broad enough to cover transgender persons under its provision banning discrimination based on sex.

Schroer applied for the job as David Schroer and appeared for the interview in male clothing. The employer later rescinded a job offer after Schroer informed a supervisor that she was transitioning to a woman and would begin her job using her new name and as a woman. More coverage of the case is available at the National Law Journal, Washington Post, Washington Blade, and ACLU's website.

The outcome of this case could potentially change the face of federal gender discrimination policy under Title VII of the Civil Rights Act -- not intepreted specifically, to date, so broadly as to prohibit discrimination on this basis.

The ultimate decision may, however, be rendered moot by the legislative progress of the Employment Non-Discrimination Act (ENDA), and whether or not it is passed with transgender provisions included. Regular readers of this blog may recall that Plaintiff Diane Schroer testified before a House Subcommittee meeting on June 26, 2008, on behalf of an expanded ENDA. The U.S. House of Representatives passed H.R. 3685 -- the Employment Discrimination Act of 2007 (ENDA) without transgender protections by a vote of 235-184 in November 2007.

Employers must follow progress of this case and the ENDA closely, and be prepared to adjust all employment policies accordingly.