After four years of fighting in court under the last Administration, the U.S. Department of Justice decided last month not to appeal Diane Schroer’s landmark victory in her discrimination suit against the Library of Congress. Diane, a U.S. Army Special Forces veteran and counterterrorism expert, was offered a position at the Library for which she highly qualified, only to have that offer rescinded on the basis of her gender transition.
The decision not to appeal was not really a surprise, coming as it did only days after a White House memorandum that is expected to lead to clearer protections for transgender federal employees. What happened to Diane should never have happened in the first place. Like the rapidly growing number of private employers with explicit nondiscrimination policies on the subject, most federal officials making hiring decisions today would realize that a person’s gender identity or expression is irrelevant to their ability to serve their government. They would realize that what happened to Diane is exactly the kind of irrational, non-merit- based discrimination that the Civil Service Act has long prohibited. Indeed, Diane wouldn’t have been the first out transgender person to work for a federal agency, or even for the Library of Congress.
But the blatant discrimination Diane experienced did happen, and that’s not surprising either. Most employers, even large ones, don’t yet have clear antidiscrimination policies, nor do most states or cities. Even with public and private employers alike increasingly recognizing that gender identity is irrelevant in the workplace, there are outliers, managers who are motivated to discriminate by ignorance or bias. That’s why, even with Diane Schroer winning in court, we need clear guidelines for the federal workforce. It’s why, ultimately, we need ENDA: to set a clear, consistent, national policy that in this country we do not discriminate based on gender identity, any more than we discriminate on the basis of religion, age, race, or disability. Passing ENDA won’t end discrimination once and for all – there will still be lawsuits like Diane’s. But it will establish unambiguously what most Americans already believe: that this kind of discrimination is never acceptable.