Legal

You Can't Take Away A Job That You Offered Her When She Was A He

MayorBob.

Posted to Legal on Tue Aug 19, 2008 at 01:11:01 PM EST (promoted by port1080). RSS.

It's been about three years in the making, but a job discrimination case is about to go to trial that might have serious ramifications. The case is considered very significant because of who is being sued, what the cause for the case is, and the special circumstances involving the plaintiff. The outcome could affect federal employment practices and have far-reaching impacts to lower levels of government and into the commercial world.

The legal issue is quite simple. When the Library of Congress had an opening for a senior terrorism research analyst, David Schroer seemed like a natural pick. He was a highly decorated, 25-year Army veteran who had worked with this stuff while on duty. The job offer was made and Schroer accepted. He also informed his new employer that he would begin work as Diane, because he was diagnosed as suffering "gender dysphoria" with associated gender identity disorder. Schroer indicated a desire to make the physical transition from male to female in the future. A day later, the job offer was withdrawn. Schroer didn't think this was very fair.

Neither did the American Civil Liberties Union (ACLU) which helped Schroer file a lawsuit (pdf doc) claiming that the Library of Congress violated a federal law which is supposed to ban sex discrimination in employment. Twelve states and the District of Columbia have laws which specifically address gender identity discrimination in the workplace. Title VII is the overriding law at the national level and it doesn't specifically mention gender identity. However, there is at least one US Supreme Court decision (pdf doc) which some courts have held protects transgendered people under Title VII because "they do not conform to gender stereotypes."

US District Judge James Robertson, who will be presiding over this case, recently denied a government motion to dismiss without ruling on whether Title VII does address gender identity discrimination. The US Attorney prepared to argue the government's case says "first and foremost, transsexuals ... are not a protected class under Title VII" and the claim "that a transsexual does not conform to sex stereotypes give rise to a cause of action under Title VII." There was no discrimination. As a result of Schroer's disclosure there were concerns over the need for additional security investigations as well as the fact that he "might not be viewed as credible by members of Congress." Apparently there's at least one Congressperson who takes Schroer seriously. US Representative Barney Frank (D - MA) called her as a star witness during hearings Frank chaired on the matter of workplace discrimination against the transgendered.

Tags: edited by Port1080, written by MayorBob, transgender, gender dysphoria, job discrimination, Title VII, lawsuit (all tags)

This story: 83 comments (3 from subqueue)
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1

Gender

port1080.

Tue Aug 19, 2008 at 01:29:13 PM EST

5.00 (astute, interesting)

Ignoring Schroer's exact case for the moment, I find it quite interesting that 12 states already offer some legal protection for transgendered folks.  I find this interesting because we do allow for companies to hire somewhat based on appearance and how one conducts oneself.  It's considered legitimate enough for a company to refuse to hire someone based on odd hair styles, piercings, extreme body modifications, etc.  What is gender reassignment surgery but the most extreme body modification?  Why is this sort of most extreme BME somehow more acceptable than somewhat less invasive procedures (like, say, lip splitting, or ear lobe stretching).  The answer, of course, is that a fully gender reassigned person looks pretty darn "normal" (as long as the procedure is well done, anyway).  So what we're saying is that it's okay to be either one gender or the other, as long as you fall within the norms of that gender - but if you deviate, no legal protection for you!  Now, some people would argue that being transgendered is a "legitimate disorder" that requires medical treatment and understanding.  Okay, find - but why isn't my hypothetical desire to split my lip and put a half dollar in my ear lobe just as legitimate a disorder?  If that's what it takes for me to be psychologically fulfilled, who are you (or is my boss) to argue?

My inclination would be to make hiring based on physical appearance or gender illegal, period.  What one decides to do with one's body should not be something that a business can control.  Some may say that it will be shocking and difficult, and remove an effective way for businesses to screen out undesirables.  Such people undoubtedly would have felt the same way about laws banning discrimination against women and raced based discrimination (yeah, Steve-O, here's looking at you).  The fact is that even if such visual shortcuts may occasionally be accurate (or may even be accurate more often than not), there are still plenty of people who do not fit their visual stereotype, and deserve not to be discriminated against based on that.  Set criteria for positions based on clear, performance based requirements.  As long as the candidate can meet those expectations, why should it matter what the person looks like?  If they don't meet the expectations, get rid of them for that poor performance, not because of how they look or dress or what gender role they embrace.

2

^ 1

Re: Gender

Steve Urkel.

Tue Aug 19, 2008 at 01:47:01 PM EST

5.00 (astute)

"If that's what it takes for me to be psychologically fulfilled, who are you (or is my boss) to argue?"

What about my psychological fulfillment? If it's my company, I should be allowed to have employees I enjoy working around. If your psychological fulfillment is important to you start your own business.  And don't the wishes of the majority count? Most people prefer not to have to work in an environment full of freaks. Why should the desires of a tiny minority of freaks take precedence over the wishes of the majority?
 

3

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Re: Gender

port1080.

Tue Aug 19, 2008 at 02:17:12 PM EST

5.00 (interesting)

And don't the wishes of the majority count? Most people prefer not to have to work in an environment full of freaks. Why should the desires of a tiny minority of freaks take precedence over the wishes of the majority?

This is sort a self-fulfilling prophecy, isn't it?  "Freaks" know that they can't dress like they want and still succeed, so they assimilate because they have no other choice.  Nobody really knows how many people would like to express themselves if they could without social repercussion.

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Re: Gender

skeptic.

Wed Aug 20, 2008 at 10:20:47 AM EST

none

I often see this kind of argument used to justify discrimination against a minority.  We live in a democracy, in which the majority rules.  The minority must therefore conform to the wishes of the majority.  But minorities must also have rights.  Democracy based solely on majority rule, with no respect for the rights of minorities, becomes very oppressive. The majority has great power, but it must be careful not to abuse that power.

If a given individual wishes a sex change, or wishes to wear earrings, or tattoos, or whatever, that kind of decision is the business of the person who makes it.  It is not the business of society to make those kind of personal decisions for people.

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Re: Gender

Steve Urkel.

Wed Aug 20, 2008 at 02:14:03 PM EST

none

 "If a given individual wishes a sex change, or wishes to wear earrings, or tattoos, or whatever, that kind of decision is the business of the person who makes it."

Including swastika tattoos? How about someone who wishes to wear a shirt with a biblical quotation on it?

"It is not the business of society to make those kind of personal decisions for people."

In many places the majority forces people to hire and do business with homosexuals, even if the business owner finds homosexuality at odds with his deeply held personal religious beliefs. Do you agree with that or not?

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Where will it end

Lou.

Wed Aug 20, 2008 at 06:11:29 PM EST

4.00 (funny)

In many places the majority forces people to hire and do business with homosexuals, even if the business owner finds homosexuality

Fuckin' fags wantin' to sit at our lunch counters!?  This is unprecedented.

It's the end of the world as we know it, and I feel fine

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^ 34

Re: Gender

skeptic.

Thu Aug 21, 2008 at 08:45:50 AM EST

none

While I do support freedom of religion, I also believe that there are limits to what one can reasonably do in the name of religion.  The Thuggee cult used to practice ritual murder as a means of worshiping Kali, the Hindu goddess of death, but that cult was suppressed by the British for very good reason, and I would not support your right to murder people even for a religious motive.  Similarly, even if your motive is religious, you do not have a right to discriminate against homosexuals when hiring or doing business with people.  You can, of course, discriminate about who you invite to your parties, although even then I would consider you to be foolish if you truly believed that it is wrong to socialize with homosexuals, some of whom are very charming people.

A swastika tattoo is a more difficult matter to tolerate because it is a statement of ethnic hatred, and those who wear such tattoos also are likely to commit serious crimes.  There are few absolutes in life, so with the matter of personal adornment, it may be your personal choice but there are still some limits.  And while I would not consider it to be in particularly good taste to wear a shirt with a biblical quotation on it, I wouldn't find it necessary to prohibit such shirts either.  Of course, if I hired someone to sell shoes and that person was more interested in lecturing the customers about Jesus than in selling shoes, that would be a problem.  But the problem would not be that this person is religious, it would be that the work is suffering.  

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Re: Gender

Steve Urkel.

Thu Aug 21, 2008 at 05:16:20 PM EST

none

"so with the matter of personal adornment, it may be your personal choice but there are still some limits."

Earlier you said "It is not the business of society to make those kind of personal decisions for people."

Obviously when personal expression is expression you agree with, you think everyone should be forced to accept it, but expression you disagree with not only can but should be restricted.  Why not drop the phony pose of neutrality and just admit you think the government should impose your morality on everyone?

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^ 50

Re: Gender

JimmyHavok.

Thu Aug 21, 2008 at 05:42:17 PM EST

none

Yeah, whose big idea is it to impose that phony-baloney morality that prohibits lynching?

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^ 51

Re: Gender

Steve Urkel.

Thu Aug 21, 2008 at 06:02:27 PM EST

5.00 (funny)

Read his other comments, Jimmy, he thinks people like you should be sterilized.

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^ 52

forced sterilization

skeptic.

Fri Aug 22, 2008 at 08:44:23 AM EST

5.00 (funny)

I am not actually planning to have Jimmy Havok sterilized (despite the lengthy arguments that I have had with him in the past) but you are definitely on my list.

53

^ 52

Re: Gender

Lou.

Thu Aug 21, 2008 at 06:07:15 PM EST

none

Better sterilized than lynched.  But, just to be clear...what in the name of all that's holy are you talking about?  All people named Jimmy should be lynched?

It's the end of the world as we know it, and I feel fine

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^ 52

Re: Gender

JimmyHavok.

Thu Aug 21, 2008 at 06:09:05 PM EST

none

If you're referring to skeptic's idea about limiting population, I suspect you'd have some trouble making the cut.  Inbreeding can have that effect.

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^ 50

the phony pose of neutrality

skeptic.

Fri Aug 22, 2008 at 08:36:10 AM EST

none

It is a funny thing about moral beliefs; everybody thinks that theirs are correct and should therefore be imposed on everyone.  Even people who think that it is up to every individual to arrive at his or her own concept of morality are expressing a moral position, by advocating a morally permissive society that allows everyone to invent their own morality, and that too is a system which they wish to impose on everyone by preventing society from imposing its morality on anyone.

So yes, I have moral beliefs that I would like to impose on everyone (not that I have any means of doing so, unfortunately).  But that doesn't really mean that my neutrality is phony.  My concept of morality is very fair and unbiased, it is not based upon any desire to secure a selfish advantage or to promote some arbitrary religious, ideological, or other belief system, it is a sincere effort toward being objectively right.  Of course, since I am a fallible human being like everyone else, I may not be completely successful in my effort to be objective, but I think I have done pretty well, everything considered.  And if you don't think so, you are of course free to explain why my morality is inferior to yours.  But so far you haven't.

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^ 55

Re: the phony pose of neutrality

Steve Urkel.

Fri Aug 22, 2008 at 09:12:52 PM EST

none

"My concept of morality is very fair and unbiased"

The word you were looking for is "totalitarian".

"it is not based upon any desire to secure a selfish advantage or to promote some arbitrary religious, ideological, or other belief system"

Sure it is. In your comments above you were making all sorts of arbitrary distinctions between what's acceptable expression in the workplace.

"you are of course free to explain why my morality is inferior to yours"

For one thing mine's less intrusive, though I don't see how you can be convinced that that is a positive thing.

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Re: the phony pose of neutrality

JimmyHavok.

Sat Aug 23, 2008 at 01:36:56 AM EST

none

mine's less intrusive

...for rich, straight, white men.

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Re: the phony pose of neutrality

skeptic.

Sat Aug 23, 2008 at 08:45:24 AM EST

none

I have never advocated a totalitarian system of morality and indeed, I favor a less intrusive government than the one we now have, at least in some respects (my system of reproductive licensing would, of course, be more intrusive); for example, I am strongly opposed to the war on drugs.  I believe that responsible adults should have the right to make their own choices about what drugs they wish to take.  And just because I believe that the government should intervene in some areas of human life does not make my philosophy totalitarian.  There does exist a middle ground between anarchism and totalitarianism.  Possibly you haven't noticed.

And no, I am not advocating arbitrary distinctions about acceptable expression in the workplace.  The distinctions that I make are founded on perfectly good and logical reasoning.  They are hardly arbitrary.

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Re: the phony pose of neutrality

Steve Urkel.

Sat Aug 23, 2008 at 01:37:21 PM EST

none

You've arbitrarily decided that some groups must accept offensive expressions and some groups must be tolerated while other groups can't engage in offensive expression and other groups can't be tolerated.

 

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Re: the phony pose of neutrality

skeptic.

Sun Aug 24, 2008 at 09:50:05 AM EST

none

You're not paying attention.  My decisions are not arbitrary.  You may not agree with my reasoning, but that doesn't mean that I don't have reasons.

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The Bad Thing About Swastika Tattoos.

MayorBob.

Thu Aug 21, 2008 at 08:56:09 AM EST

none

First they start out all innocent as some sort of political statement and a matter of somebody's right to express themselves. Then, the next thing you know they're murdering everyone in the damned house.

Illegitimi non carborundum.

77

Question for Gerrymander

Dr John A Zoidberg.

Sun Aug 24, 2008 at 05:30:00 AM EST

4.66 (astute, brilliant, interesting)

So I have a question for you then. I noticed your interaction above with Havok, Bob, sceptic and others and that the position you took in justifying taking the job offer away was that the candidate did not disclose his intent to undergo gender reassignment surgery and that this alone is your sole reason for refusing employment and not a dislike of transgendered people.

So on that basis I ask if I would have been justified in revoking a job offer in the following circumstance. A couple years ago I interviewed a potential candidate for a job at a financial institution. Said candidate seemed to be pretty good on paper, better than some of the other candidates, reasonably well spoken and intelligent and was in the process of finishing up a doctorate at university, but wished to take the job early and finish the Ph.D. while working.

I twice interviewed this candidate - he had 3 interviews total - and in none of the interviews did said candidate wear a yarmulke to the interview, nor did said candidate indicate anywhere on his resume that he was involved in jewish organisations but he did indicate some other non-religiously affiliated interests to support the idea he was a well rounded candidate.

Upon taking the job and EVERYDAY since he has worn a yarmulke; he carries with him a copy of the talmud and torah, is often seen reading them at his desk at lunch; keeps kosher, which means that work group lunches and other functions had to work around his dietary requirements and has been very explicit about the fact that he is jewish ever since, yet this was something that he didn't indicate during the interview. Indeed it has been my impression that he actively hid this fact from us in the interview going so far as to avoid any giving any signs in the interview that he might be jewish and this is all the more odd since he was interviewing for a job in a financial institution that employees a large number of jewish individuals and thus certainly didn't need to feel he might have been descriminated against.

So would we have been within our rights to revoke his offer of employment, not because he is jewish but because he hid the fact that he's jewish? I ask the last as a hypothetical because neither myself not do I believe anyone else I worked with had any issue with him being jewish anyway but given your defence above of the LOC revoking the offer to a transgendered hiree, then we too could have fired this candidate for hiding the fact that he is jewish and a very open, conservative practising jew who takes al of the high holidays, who leaves early on fridays to light a candle, etc.

For myself, the fact that he didn't ever complete his Ph.D. after being hired despite it being an expectation that he would and that he was being hired because he would eventually have a Ph.D was part of why he was considered.

But that's not what I'm asking. Should we have fired him for hiding the fact that he was/is jewish during the interview?

4

gone lawsuit fishing

gerrymander.

Tue Aug 19, 2008 at 02:37:20 PM EST

none

The job offer was made and Schroer accepted. He also informed his new employer that he would begin work as Diane, because he was diagnosed as suffering "gender dysphoria" with associated gender identity disorder.

Here's my question: if this is so damn important to him, why didn't Schroer insist on being treated as a woman during the interview? Even if we agree that transsexuals should not be discriminated against, shouldn't employers have the right to withdraw employment offers from candidates who have falsely portrayed themselves during the hiring process?

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Re: gone lawsuit fishing

wetkarma.

Wed Aug 20, 2008 at 04:37:51 AM EST

5.00 (astute)


Here's my question: if this is so damn important to him, why didn't Schroer insist on being treated as a woman during the interview? Even if we agree that transsexuals should not be discriminated against, shouldn't employers have the right to withdraw employment offers from candidates who have falsely portrayed themselves during the hiring process?

Hm, its not often we disagree gerry so I'd like to dig into this a bit to see where exactly our perspectives are diverging.  Considering its an ACLU case, I feel I've somewhat of a minor stake (as a member) in the story.

Reading the Washignton Post article, Schroer seems like an awesome candidate for the job. According to the WaPo article, he invited his prospective supervisor to lunch - explained the gender identity issue and showed the supervisor pictures of 'him' dressed as a woman. The key thing here is that at this point in time A) Schroer was still pre-op i.e. a man so its hard to argue he misrepresented himself by 'pretending' to be a man and B) was making a good faith effort to be forthcoming rather than showing up day 1 as 'Diane' and confusing everyone.

Now you say 'why didn't Schroer insist on being treated as a woman' in the interview. Well what can this really mean? His resume (which is what allowed him to be qualified for the job) was all based on his activities and knowledge gathered as a man.

The thing that makes me uncomfortable here is that this is the US government not a private firm in Mississippi. Schroer had served the country with what seems like fidelity and honor, I think that saying he was dishonest and therefore disqualified for the job on the grounds of being dishonest is grossly unfair.

Memory is a strange bell, jubilee and knell.

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Re: gone lawsuit fishing

gerrymander.

Wed Aug 20, 2008 at 11:27:03 AM EST

none

Now you say 'why didn't Schroer insist on being treated as a woman' in the interview. Well what can this really mean?

It means he didn't show up to the interview in a dress (despite having pictures); didn't disclose the plan to change his sex prior to the job offer (despite having plans to do so); didn't file his application as "Diane" (despite a desire to be thought of that way).

Whether or not the gender identity issue matters to the Library of Congress, it clearly matters to Schroer. By virtue of him having the pictures, diagnosis, etc., it's been important to him for a long time. I don't need to disparage Schroer's work history and background because the problem isn't in his past, it's in his future. Past employment might have been exemplary, but it also included him suppressing one aspect of his life. If he doesn't intend to continue that suppression, that needs to be part of the equation potential employers can consider. Keeping it hidden until after receiving an offer was a poor ethical choice -- what kind of asshole says, "Now that you're legally stuck with me, I can tell you the truth"?

Like it or not, how an employee "fits" in an organization matters, private company or not. Schroer chose to hide a crucial part (to him) of his identity until after a position was offered. To my mind, that's a major strike against him.

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Re: gone lawsuit fishing

wetkarma.

Thu Aug 21, 2008 at 04:48:02 AM EST

none


If he doesn't intend to continue that suppression, that needs to be part of the equation potential employers can consider. Keeping it hidden until after receiving an offer was a poor ethical choice -- what kind of asshole says, "Now that you're legally stuck with me, I can tell you the truth"?

Two questions.

  1. Are you then saying his disclosure/sex change significantly affects his/her ability to do the job such that some other candidate would then be more qualified?

  2. In using the 'stuck with me' statement, are you acknowledging that from a legal perspective, the congress library is in the wrong (legally)?

What I'm trying to figure out is what you would think if he had gotten hired, started the job, and a month/some time later did the sex change - would you think they had grounds to fire him then?

Memory is a strange bell, jubilee and knell.

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Re: gone lawsuit fishing

gerrymander.

Thu Aug 21, 2008 at 11:54:16 AM EST

none

Are you then saying his disclosure/sex change significantly affects his/her ability to do the job such that some other candidate would then be more qualified?

Affect his ability, maybe; some other candidate would become more qualified, possibly. With those decisive answers, I'll elaborate. What we know of the case from the employers' side reveals that Schroer was tendered the job offer based partly on his contacts and prior working relations. If the sex change adversely impacted those contacts/relations, Schroer's ability to perform the job would change.

More importantly, Schroer should have known based on his past work experience that a sex change procedure would trigger security clearance issues. If he didn't know, that's a strike against his otherwise estimable qualifications. If he did know and decided to dissemble, that's two strikes against him: one for delaying a security procedure and thus placing his future employer in a bind; and another for acting suspiciously when confronted with a security clearance procedure.

I'm not qualified to know whether these factors would have pushed Schroer's candidacy below that of another applicant. I am qualified to opine that the Library of Congress personnel had every right to rescind a job offer until they could review the full details of his status.

if he had gotten hired, started the job, and a month/some time later did the sex change - would you think they had grounds to fire him then?

Depends. I don't really consider the sex change itself the problem. If he wasn't upfront with this employers and still acted dodgy when confronted with the security stuff, then yes, certainly fire him. On the other hand, even if he came clean to his supervisors, etc., but lost credibility with high-profile contacts, he would still need to be replaced based solely on performance reasons. We can hope that wouldn't be the case and that people would be tolerant of his choice, but life is rarely fair.

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Re: gone lawsuit fishing

wetkarma.

Thu Aug 21, 2008 at 01:22:44 PM EST

none


We can hope that wouldn't be the case and that people would be tolerant of his choice, but life is rarely fair.

It sounds to me that under the approach you outline, we'd still be excluding black people, homosexuals and other untrustworthy people from public service on the grounds that they couldn't credibly perform their jobs.

Credibility is a problem, I will admit. But you have to start building credibility somewhere.., and in the end, minority that I am...I'll be damned if I agree with any approach which would exclude me from achieving my hopes/dreams because it might make other people uncomfortable.

Like you, I couldn't care less about the sex change. MY pet peeve on this situation is that 40 years ago someone could have applied for the same job and got accepted because they 'looked white'....but when word got around about their darkie parents, well thats no good.

I get where you are coming from gerry, and I sympathize a little. In a certain light it looks like Diane was sandbagging the congress (and everyone else all her life). In judging the issue, my view is that his failure to be more forthcoming during the interview process doesn't rise to the damning level you see it as. Furthermore, as someone keenly aware of the security clearance requirements associated with the government, and how it serves to preemptively excludes many qualified individuals (did you know that citizens who marry non-citizens can't get cleared?), I'm not very persuaded to their utility. Still I will concede that if his job required leveraging the use of contacts that would no longer be available to him, the congress would have a valid case.

I think you and I will both agree though that given the timing involved -- their decision was based on more of a 'gut reaction' than a rational analysis of the pros and cons. In the end I see this as unjustified discrimination. You can't talk the talk about a free and equitable society if you aren't willing to walk the walk as well. The government should be an example to the country - do you really want one which excludes people on the basis that their gender seems dodgy?

Memory is a strange bell, jubilee and knell.

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Re: gone lawsuit fishing

gerrymander.

Thu Aug 21, 2008 at 04:48:12 PM EST

none

It sounds to me that under the approach you outline, we'd still be excluding black people, homosexuals and other untrustworthy people from public service on the grounds that they couldn't credibly perform their jobs.

Not to put too fine a point on it, I'll note that this is the first presidential race in which one party is running a black man as a credible contender for the White House. The Democrats* had the capability to decide to only run back candidates for high office in the name of social justice; they didn't. This doesn't mean great strides haven't occurred in racial equality since the 50s, it just means they picked their battles.

* As did the Republicans, of course.

their decision was based on more of a 'gut reaction' than a rational analysis of the pros and cons.

I agree to an extent -- that extent being that a rational analysis can't take place while a job offer is on the table, if for no other reason than an accepted offer moots the analysis. Since the best alternative didn't happen, we (you, me, the court) are left debating whether the gut reaction was "we can't hire this freak!" or "we need to reassess."

In judging the issue, my view is that his failure to be more forthcoming during the interview process doesn't rise to the damning level you see it as.

That's fair, but it's also a personal calibration. I can only say that, having hired a few people, my tolerance for dissembling during the interview process is very low.

5

^ 4

Re: gone lawsuit fishing

thefadd.

Tue Aug 19, 2008 at 02:42:15 PM EST

none

If the individual's sex was irrelevant to the initial hiring process, then a change in sex is irrelevant. I don't see any way around that.

It is easy to buy small plaster models of what you think life is like.

6

^ 5

Re: gone lawsuit fishing

gerrymander.

Tue Aug 19, 2008 at 02:47:05 PM EST

5.00

If the individual's sex was irrelevant to the initial hiring process, then a change in sex is irrelevant.

Deliberately lying to an interviewer is always relevant, regardless of the nature of the lie.

7

^ 6

Re: gone lawsuit fishing

thefadd.

Tue Aug 19, 2008 at 02:50:04 PM EST

none

Unless it's specific to the job duties, I don't think employers are legally allowed to ask what sex you are, are they?

It is easy to buy small plaster models of what you think life is like.

8

^ 7

Re: gone lawsuit fishing

gerrymander.

Tue Aug 19, 2008 at 03:02:11 PM EST

none

They're not legally allowed to ask about race, either, but that doesn't mean going to the interview in blackface is a wise choice. Again, it's not about sex, it's about misrepresentation -- which immediately opens the door to questions like, "what else has this job candidate mislead the interviewer about?" and "would we be better off hiring someone who hasn't already chosen to deceive us?"

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What's more important here?

MayorBob.

Tue Aug 19, 2008 at 05:16:38 PM EST

5.00 (astute)

Was this the same person who came to the job full of all those wonderful job qualifications the Library of Congress was looking for? Yes. Did this person have an exemplary work record? Apparently, if you consider being a highly decorated combat veteran who had risen to the rank of Lieutenant Colonel to be exemplary. Is there something about the job Schroer applied for which would mean that a man or a woman couldn't perform? No. If Schroer passes the grade on all of those questions (and she does) by what measure can you justify refusing to honor the job offer extended to him? Oh wait, you're saying because he went through the application and interview process as a guy, then because he told his employer he would be changing over into a woman that this constitutes misleading the employer. I disagree.

If there was no part of the job which absolutely required a man or woman to perform it, then what Schroer's gender is or will be is immaterial. They decided to give him the job as a human being with all that experience and all those qualifications. While I'm not positive that this case will be decided in Schroer's favor (or he'll win out on appeal) I can't really see a good reason not to rule in Schroer's favor.

As far as all that business in wondering about "what else did Schroer mislead" the Library of Congress about, it's fairly standard that when you're hired by the federal government, you're on probation for a period of time. If it turns out that Schroer lied about anything on the application, it would constitute grounds to terminate.

Illegitimi non carborundum.

12

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Re: What's more important here?

gerrymander.

Tue Aug 19, 2008 at 10:05:18 PM EST

none

They decided to give him the job as a human being with all that experience and all those qualifications.

And that human being called all that experience and those qualifications on doubt by revealing something additional about himself: a willingness to deceive the interviewers during the job selection process. (Or do you think that Schroer manifested the symptoms of gender identity disorder and decided to change his entire life only after the interview process but before the job offer?) What Schroer did was exactly the same as telling an employer "I'm going to spend every minute of this job high on cocaine!" after getting an offer; it doesn't change the candidate's qualifications, but it does significantly alter the nature of the fit within the organization in a number of ways -- the most important of which is "your boss has reason to distrust you."

Again, I ask: If being thought of as a woman is so important to Schroer, why did he interview as a man?

it's fairly standard that when you're hired by the federal government, you're on probation for a period of time.

So you think employers have a right to rescind employment after hiring, but not before the person is employed? That makes no sense.

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^ 12

Hold on.

Lou.

Tue Aug 19, 2008 at 10:10:07 PM EST

none

You're equating a drug addiction to a sex change?  

It's the end of the world as we know it, and I feel fine

17

^ 13

Re: Hold on.

gerrymander.

Wed Aug 20, 2008 at 01:07:37 AM EST

none

They're both mind-state affecting disorders, right? We know drug addiction is, and that's what Schroer is claiming as per the write-up above. So, what's the problem?

20

^ 17

Re: Hold on.

Lou.

Wed Aug 20, 2008 at 06:59:43 AM EST

none

troll

It's the end of the world as we know it, and I feel fine

25

^ 17

Re: Hold on.

skeptic.

Wed Aug 20, 2008 at 10:32:43 AM EST

none

If we accept that gender dysphoria is equivalent in severity to cocaine addiction, there is still a fundamental difference between the two.  In the case of gender dysphoria, there is a simple and effective treatment, which is to get a sex change operation.  After the operation, the problem is solved.  The person in question can now function as a happy, well-adjusted human being without sexual dysphoria.  Whereas, cocaine addiction is very hard to overcome, and in the example which you give, of a person who tells an employer after being hired that "I'm going to be high on cocaine all the time I am working" the person isn't even attempting to overcome the addiction, but intends to remain an addict.

I think that your whole argument that the employer was deceived because of failure to disclose the intention to have a sex change is ridiculous.  The reason for not disclosing the intention to have a sex change is that the sex change is irrelevant to the job.  Do you honestly believe that there is any reason why a woman cannot do this job as well as a man?  Because I don't see any such reason.  And if gender is irrelevant to this job, there is no reason to bring it up.  In effect, you are asking this applicant to say "by the way, just in case you happen to be prejudiced against transgendered people, you should know that I intend to have a sex change operation, so that you can discriminate against me unfairly".

27

^ 25

Re: Hold on.

gerrymander.

Wed Aug 20, 2008 at 11:33:30 AM EST

none

In effect, you are asking this applicant to say "by the way, just in case you happen to be prejudiced against transgendered people, you should know that I intend to have a sex change operation, so that you can discriminate against me unfairly".

And by taking the opposite stance, you're telling the applicant that it's OK to assume and act as if a potential employer is prejudiced, without any knowledge if such is true. News flash: employers are also people, and are also worthy of being treated with respect.

29

^ 27

Re: Hold on.

skeptic.

Wed Aug 20, 2008 at 11:55:40 AM EST

none

I don't think that respecting a prospective employer means that one therefore has to divulge information which has no relevance to the job for which one is applying.  If I were in the situation of applying for a job at a time when I was also planning to have a sex-change operation in the near future, I might very well give my prospective employer credit for being a fair-minded person who would not wish to discriminate against me for being a transsexual, and I might still find it unnecessary to raise the subject, since it remains irrelevant to my job application.  I do not usually mention to prospective employers that I am a science fiction fan, either.  Does this mean that I am keeping secrets from them?  No, it means that I prefer not to introduce irrelevancies into my application.  Employers do not care that I read science fiction, nor should they.  Similarly, they should not care if I were a transsexual.  I don't know why you care so much.  We have a story about a person who is being denied a job for which she is very highly qualified.  You, however, think that it is the sex-change which matters, not the job qualifications.  That is very illogical (as we would say on Vulcan, my native planet).

30

^ 29

Re: Hold on.

gerrymander.

Wed Aug 20, 2008 at 12:03:55 PM EST

none

I do not usually mention to prospective employers that I am a science fiction fan, either.  Does this mean that I am keeping secrets from them?

It does if it means you plan to come to the office every day in full Klingon battle garb, and expect your coworkers to use proper Klingon etiquette when talking to you -- which is the level of workplace arrangement we're talking about. Even if we can agree that such dress and behavior is OK, it's really disrespectful to blindside someone about it.

31

^ 30

Re: Hold on.

skeptic.

Wed Aug 20, 2008 at 12:26:51 PM EST

5.00 (funny)

Since I already told you that I am from the planet Vulcan, I don't see why you expect me to come to work in full Klingon battle garb.

But seriously, folks, it is perfectly NORMAL for human beings to be either male or female.  There is no particular difficulty in having a female employee even if that female employ was formerly male.  This is not equivalent to demanding that your fellow employees use Klingon etiquette in talking to you.  You can use normal human etiquette in talking to a woman, even if she was formerly a man.  It doesn't alter the etiquette.  Just accept her as a woman and there won't be any problem.  It's very simple.

Now, if instead of having a sex change operation you were going to transform yourself into a giant insect, then I could see that there would be a problem.

35

^ 31

Re: Hold on.

gerrymander.

Wed Aug 20, 2008 at 03:53:20 PM EST

none

it is perfectly NORMAL for human beings to be either male or female.

Yes, but changing from one to the other isn't. More the point, bringing the change up immediately after, and only after, a job offer is laid on the table is not even slightly normal.

Let me try another example: It's totally normal -- true in 95% of the cases, give or take -- for men to find women attractive. So, imagine a case where a an employer has a seemingly straight guy as a job candidate. The guy's record looked exemplary -- great credentials, outstanding performance reviews, not even the merest mention of anything untoward --  and so he gets called into a meeting for a job offer.

After getting the news, the guy says, "Look, there's something I have to tell you: I love tits. I mean, I love tits. I appreciate a woman with a shapely leg or firm ass, sure, but really for me, it's all about the tits. After work, I'm at a strip club for the biggest chesticles I can find. Here, let me show you some vacation pictures, when I stopped at the D-CupCuties.com booth at Mamm-O-Rama in Vegas last year..."

The employer might be forgiven if he comes out of that meeting thinking,"what the fuck kind of minefield did I just step into?" The prospective employee has nothing close to hinting at harassment charges in his history; there's nothing forbidding adults doing adult things away from work; a majority of straight men would understand what the appeal of that particular fetish is; a love (or not) of breasts isn't relevant to the work the position requires. But you know? Very few people in the current employment environment would bring that particular aspect of their personality to the front and center like that. Almost none, as a matter of fact. It's a very ABNORMAL kind of thing to do.

Well, likewise with Schroer. Even if we assume the sex change isn't relevant to the job, the manner by which attention was called to it might be. No employer should be denigrated for thinking so.

36

^ 35

Short Answer To A Rather Long Ridiculous Example.

MayorBob.

Wed Aug 20, 2008 at 03:58:45 PM EST

5.00 (astute)

No, it's really nothing like that at all.

I have to give you points for really digging down deep but you're just striving here.

Illegitimi non carborundum.

41

^ 35

Re: Hold on.

JimmyHavok.

Thu Aug 21, 2008 at 01:25:59 AM EST

5.00 (astute)

Interesting.  You seem to think that be3ing a woman is obnoxious.

A better analogy would be if you hired someone, and then at lunch he revealed to you that he was African-American, although he had been wearing very effective makeup that made him look white.  I guess you could fire him then, since he misled you, eh?

43

^ 35

Re: Hold on.

skeptic.

Thu Aug 21, 2008 at 08:26:26 AM EST

none

The weird thing about your comment is that you claim that failing to discuss one's sexual dysphoria is equivalent to discussing one's sexual fetish, when clearly, these are opposite kinds of situations.  Discussions pertaining to sex can make people uncomfortable, therefore, one does not discuss the subject, particularly at work, unless one has good reason to believe that the discussion is going to be well received.  So therefore, one would not wish to bring up either sexual fetishes or sexual dysphoria.

Of course (to save you time) you will argue that the problem with sexual dysphoria is that even if you never bring it up, it is going to come up, because you came in to work as a man last week and this week you came in to work as a woman, and that sort of thing gets noticed.  But in reality, it still doesn't have to come up as a topic of conversation if you don't want to discuss it.  The name change would have to be noted, for administrative purposes, so that checks can be made out properly, that's about it (and no, it is not offensive to an employer if an employee finds it necessary to have a change of name).

So far you have still failed to come up with any legitimate reason why an employer should care about an employee's sex change, which is really a personal matter that is not the employer's business, with certain possible exceptions; if your job was as a male dancer, for example, and now you are suddenly a female dancer, that is relevant.  But if your job is as a security analyst, gender is not relevant.

47

^ 43

Re: Hold on.

gerrymander.

Thu Aug 21, 2008 at 12:14:46 PM EST

none

The weird thing about your comment is that you claim that failing to discuss one's sexual dysphoria is equivalent to discussing one's sexual fetish, when clearly, these are opposite kinds of situations.

They're not, from the perspective of an employer. You're focusing on the internal qualifications of the job, but failing to address the external qualifications. An employer has every right to determine whether a sexual fetish or dysphoria will significantly and detrimentally impact working relations with a job applicant if the applicant broaches the subject. Even if the topics aren't discussed, other people's reactions may change job performance. Just because that isn't fair doesn't make it untrue.

But if your job is as a security analyst, gender is not relevant.

Gender isn't relevant, but changing gender is. One issue which the WaPo article above fails to acknowledge is that undergoing a sex change procedure will invoke a security clearance alert at high enough levels of government -- something a security analyst should have known.

56

^ 47

Re: Hold on.

skeptic.

Fri Aug 22, 2008 at 08:41:44 AM EST

none

If gender isn't a relevant job qualification, then changing gender is also irrelevant.  And even if it is true that a change of gender will, as you say, invoke a security clearance alert at high enough levels of government, I still don't see why it should.  If the government thinks that a person who changes gender is therefore less trustworthy that those who don't, they are simply wrong.  This is nothing more than paranoia.

58

^ 56

Re: Hold on.

gerrymander.

Fri Aug 22, 2008 at 11:51:37 AM EST

none

If gender isn't a relevant job qualification, then changing gender is also irrelevant.

Nonsense. Humans are not a species which routinely or biologically changes sex. Even the rate of sexual dysphoria as a percentage of the population is extremely low (IIRC, something like 1 in 70,000). The end state of a gender change might be irrelevant*, but the change itself is very relevant.

* Then again, maybe that's relevant, too. If the transgendered gain protected employment status, then the transition from "not protected" to "protected minority" is an important qualifier for an employer to consider.

If the government thinks that a person who changes gender is therefore less trustworthy that those who don't, they are simply wrong.

Very possibly, but hiring decisions at the Library of Congress is the wrong forum to address that.

59

^ 58

Re: Hold on.

skeptic.

Fri Aug 22, 2008 at 02:41:38 PM EST

5.00 (astute)

We humans dare to do all sorts of things that are not an established part of our past history.  We did not routinely change gender in the past, but now we do.  Many people have successfully treated their gender dysphoria by means of gender re-assignment surgery, which is now a familiar part of modern medicine.  Pacemakers, for example, are another relatively recent innovation.  You could just as easily say that humans are not a species which routinely has mechanical devices implanted to regulate heatbeat.  But so what?  If someone requires such a device, that person should have one.  We transcend out biological limitations.  There's nothing wrong with that, it's called progress.

Now we have gotten to the point where you agree that it is at least very possibly unnecessary to consider someone to be a security risk merely because they have had a sex change, however, you still object that hiring decisions at the Library of Congress is the wrong forum to address that.  My opinion is that if it is wrong to discriminate against transgendered people, then it is wrong everywhere, and in every forum.  It shouldn't be done, period.  It is unfair, unreasonable, and even un-American, to the extent that America still believes in granting equal rights to all of its citizens.

And by the way, since you now are hypothesizing that someone would change their gender in order to gain the status of a protected minority, that's pretty weird too, particularly since this minority doesn't seem to be protected.  And if you were actually happy to be the gender that you already are, then a medically unnecessary sex change would bring about an induced case of gender dysphoria, probably quite severe.  It's sort of like cutting off both your legs because you want to be able to park in the disabled parking space.  No one would do that who wasn't completely insane.
 

60

^ 59

Re: Hold on.

gerrymander.

Fri Aug 22, 2008 at 03:04:39 PM EST

none

My opinion is that if it is wrong to discriminate against transgendered people, then it is wrong everywhere, and in every forum.

My point there is that regardless of what the LoC might choose to do as regards hiring, national security policy overreaches LoC authority. No amount of beating up a Library of Congress supervisor will change that. Changing the security policy needs to be addressed if not at Congressional level, then something darned close.

particularly since this minority doesn't seem to be protected.

"Women" is a universally protected class, even if "transgender" isn't yet.

It's sort of like cutting off both your legs because you want to be able to park in the disabled parking space.  No one would do that who wasn't completely insane.

Oddly enough, this is how many people view the decision to have your wang removed and filleted in order to feel comfortable wearing a dress. And insane people tend to have trouble passing national security checks. It's almost as if all of this fits together somehow...

61

^ 60

Slice and dice

Lou.

Fri Aug 22, 2008 at 04:19:04 PM EST

none

view the decision to have your wang removed and filleted in order to feel comfortable wearing a dress.

Ummm, I think they want to be be comfortable being the sex they were born to be both externally AND internally.  It certainly goes beyond wanting to feel "pretty".  Even though I know you're not in their league, you're coming awful close to the crowd that says, "don't mess wit the way god made ya...even if god made ya wrong...which is impossible".

It's the end of the world as we know it, and I feel fine

63

^ 61

We Mutants, licken-chegs!

gerrymander.

Fri Aug 22, 2008 at 10:25:48 PM EST

none

I'm coming at it the other way, Lou. I'm presuming there's an underlying neurological cause to gender dysphoria -- a chemical imbalance or something -- which will eventually be discovered and become treatable. If so, people might well look back and view current gender reassignment surgical practices with the same horror we have for sawing off limbs to prevent gunshot wounds from becoming gangrenous.

65

^ 63

Re: We Mutants, licken-chegs!

skeptic.

Sat Aug 23, 2008 at 08:31:22 AM EST

none

I am sure that there is an underlying neurological cause to gender dysphoria.  In essence, the brain is programmed for a different gender than the the body actually has, in terms of genitalia.  I greatly doubt that this is a mere chemical imbalance (which might be treatable by a drug); more likely it is built into the actual structure of the brain, and therefore would be MUCH harder to treat neurologically than by gender re-assignment surgery.  However, it doesn't really help anyone who suffers from gender dysphoria, to tell them that at some unknown time in the future, medical science will be able to alter their brain rather than their genitalia.  Until that medical technology is actually developed, it doesn't help anybody.  Perhaps you should be the one to research this hypothetical new method of treatment, since it (apparently) concerns you so deeply.

68

^ 63

Re: We Mutants, licken-chegs!

Lou.

Sat Aug 23, 2008 at 09:34:26 AM EST

none

You might have a point there...however, by that time we'll be able to switch off and on our gender orientation for special weekends...

and we'll have jet cars...

and monkeys will fly out my butt.

It's the end of the world as we know it, and I feel fine

69

^ 68

Get help, Lou.

MayorBob.

Sat Aug 23, 2008 at 09:36:24 AM EST

none

Those monkeys flying out your butt could be a sign of some sort of chemical imbalance in the brain.

Illegitimi non carborundum.

79

^ 63

Re: We Mutants, licken-chegs!

zyxwvutsr.

Sun Aug 24, 2008 at 08:45:13 AM EST

none

...people might well look back and view current gender reassignment surgical practices with the same horror we have for sawing off limbs to prevent gunshot wounds from becoming gangrenous
A better analogy, gerry, is the horror that most folks feel when hearing stories about people afflicted with Body Integrity Identity Disorder.

82

^ 79

Re: We Mutants, licken-chegs!

gerrymander.

Sun Aug 24, 2008 at 02:50:42 PM EST

none

Good point, zyx.

66

^ 60

Re: Hold on.

skeptic.

Sat Aug 23, 2008 at 08:35:23 AM EST

none

Ah yes, now you are ready to accuse this person of insanity, because of gender dysphoria.  Well, we might consider the dysphoria itself to be a form of insanity, but as I have previously pointed out (when you compared gender dysphoria to cocaine addiction) it is a very TREATABLE form of insanity, and after the gender re-assignment surgery, the resulting transsexual person is perfectly sane and no longer has the problem of gender dysphoria.  There is certainly no reason to believe that there is also some other form of insanity, such as schizophrenia, that transsexuals also have in addition to gender dysphoria.  The particular person in question, let us remember, has a very distinguished record of service to her country.  It is not the record that we would expect from an insane person.  

72

^ 66

Re: Hold on.

zyxwvutsr.

Sat Aug 23, 2008 at 03:55:29 PM EST

none

...we might consider the dysphoria itself to be a form of insanity, but as I have previously pointed out (when you compared gender dysphoria to cocaine addiction) it is a very TREATABLE form of insanity, and after the gender re-assignment surgery, the resulting transsexual person is perfectly sane and no longer has the problem of gender dysphoria
I have become curious, skeptic, about the comments like this one when you state something so boldly about a complicated and arcane topic. "Is that true," I wonder," or is it another example of something that skeptic accepts uncritically that turns out to be false?

It took me about 30 seconds to discover that,

There is no conclusive evidence that sex change operations improve the lives of transsexuals, with many people remaining severely distressed and even suicidal after the operation

73

^ 72

Hoooold on, bubby.

JimmyHavok.

Sat Aug 23, 2008 at 04:04:52 PM EST

none

More from that article:

Research from the US and Holland suggests that up to a fifth of patients regret changing sex. A 1998 review by the Research and Development Directorate of the NHS Executive found attempted suicide rates of up to 18% noted in some medical studies of gender reassignment.

...Kevan Wylie, chairman of the Royal College of Psychiatrists' working party on gender identity disorders, said that all of his patients' lives have drastically improved following gender reassignment surgery.

Let's do the math.  That means that 80% of the cases were satisfied with the results.  Sounds like total failure to me.  Or else that you should have taken more than thirty seconds for your research:
...one study was based on a survey of seven transsexual prostitutes interviewed in one gay bar in Chicago.

74

^ 73

Re: Hoooold on, bubby.

zyxwvutsr.

Sat Aug 23, 2008 at 06:58:00 PM EST

none

That means that 80% of the cases were satisfied with the results
Bad, bad, logic, Havok.  Not expressing regret is not the same as expressing satisfaction. Also, that one stat does not address the idea that gender dysphoria may merely be a symptom of other underlying mental illness. Perhaps most telling is the 18% attempted suicide rate: that's the same as the 1 in 5 attempted suicide rate in the pre-op gender dysphoric.

Whatever else may be said about transgender surgery, it is pretty clearly not a cure in the way that skeptic was claiming.

76

^ 74

another weary second of research

JimmyHavok.

Sat Aug 23, 2008 at 10:28:59 PM EST

5.00 (informative)

Factors Associated with Satisfaction or Regret Following Male-to-Female Sex Reassignment (abstract)

Participants reported overwhelmingly that they were happy with their SRS results and that SRS had greatly improved the quality of their lives. None reported outright regret and only a few expressed even occasional regret. Dissatisfaction was most strongly associated with unsatisfactory physical and functional results of surgery. Most indicators of transsexual typology, such as age at surgery, previous marriage or parenthood, and sexual orientation, were not significantly associated with subjective outcomes.

Sex reassignment surgery: A study of 141 dutch transsexuals (abstract)

Allowing for the restrictive methodology of the (ex post facto) study, it is concluded that there is no reason to doubt the therapeutic effect of sex reassignment surgery. No specific differences were found between those who were still in medical treatment and those who had completed treatment. The findings obtained in the female-to-male transsexuals compare favorably with those obtained in male-to-female transsexuals.

75

^ 74

Re: Hoooold on, bubby.

JimmyHavok.

Sat Aug 23, 2008 at 10:20:42 PM EST

none

Not expressing regret is not the same as expressing satisfaction.

Yeah, and seven transgender hookers are a representative sample, too.

This is a case where there are two possible states: regretting, and not regretting.  It's not a false dilemma.  80% put themselves in the "not regretting" category, and somehow, you manage to interpret that as "transgender surgery doesn't do anyone any good."

78

^ 75

Re: Hoooold on, bubby.

zyxwvutsr.

Sun Aug 24, 2008 at 08:42:22 AM EST

none

Yeah, and seven transgender hookers are a representative sample, too
I'm pretty sure that article doesn't say what you think it says. Judging from your other comment (#76) I'd say you don't know what a meta-study is either.

Whatever. Neither you nor skeptic can cite a well-accepted study that supports the idea that gender reassignment is an effective treatment for gender dysphoria. That's all I'm saying.

83

^ 78

More 30-second research, I see

JimmyHavok.

Mon Aug 25, 2008 at 03:59:33 AM EST

none

You're good at that.

81

^ 72

treating gender dysphoria

skeptic.

Sun Aug 24, 2008 at 09:58:27 AM EST

none

This is a somewhat complex topic and I haven't gone into all of the complexities because they are not necessary for the point that I was trying to make, which is that it would be wrong to deny a job to an otherwise qualified person, on the basis of being a transsexual.  Sometimes people do not know what their real problem is.  They may think that they need gender re-assignment surgery when they really don't.  Diagnosis can be tricky.  And yes, gender re-assignment is complicated in both surgical and psychological terms, and therefore there is no absolute guarantee that the recipient will be happy with the result.  This does not alter the fact that gender dysphoria can be successfully treated by gender re-assignment surgery.  Jimmy Havok has contributed some useful research on this topic.  He knows I am lazier than he is.

70

^ 60

Re: Hold on, again

skeptic.

Sat Aug 23, 2008 at 12:06:47 PM EST

none

My initial reply to your comment is incomplete.  I should also note that while it may be true that the problem, as you say, lies at the Congressional level rather than at the level of the administration of the Library of Congress, that does not in any way alter the fact that it is wrong to discriminate against someone for being transsexual.  It just means that we have different people to blame for the problem.  It's still a problem.

And although you claim that "women" constitutes a universally protected class, nonetheless, this particular woman, because she is a transsexual woman, is being discriminated against.  Whereas, had there not been a sex change, he wouldn't have been discriminated against.  So I hardly think that she had a sex change in order to enter into a protected category.

39

^ 27

Re: Hold on.

JimmyHavok.

Wed Aug 20, 2008 at 04:56:27 PM EST

none

employers are also people, and are also worthy of being treated with respect.

What do you mean "also?"  You don't seem to think that employees deserve any sort of respect.

21

^ 12

Re: What's more important here?

arromdee.

Wed Aug 20, 2008 at 09:18:41 AM EST

none

It's not a willingness to deceive because it only "deceives" the employer about something they legally aren't supposed to pay attention to in the first place.

If being thought of as a woman is so important to Schroer, why did he interview as a man?

Because he wanted to be protected against dishonest employers who paid attention to things they weren't supposed to pay attention to?

It's like going to the interview with a Republican campaign button on your jacket.  If the boss hires you because he thinks you're a Republican and it turns out you're a Democrat, that's his fault for trying to discriminate based on political affiliation and having it backfire, not yours for "deceiving" him.