Charlotte Preece wanted a cigarette. She was freaking out, and she needed a moment outside her Capitol Hill building in Washington to think about the odd turn her life had taken that day, Dec. 20, 2004.
Preece, who was 51 at the time, worked then as she does now for the Library of Congress, where she helps make hiring decisions for the Congressional Research Service (CRS), the U.S. Congress's analysis agency. She had decided to recommend an exSpecial Forces colonel named David Schroer to be CRS's terrorism specialist. Schroer was a dream candidate, a guy out of a Tom Clancy novel: he had jumped from airplanes, undergone grueling combat training in extreme heat and cold, commanded hundreds of soldiers, helped run Haiti during the U.S. intervention in the '90s and since 9/11, he had been intimately involved in secret counterterrorism planning at the highest levels of the Pentagon. He had been selected to organize and run a new, classified antiterrorism organization, and in that position he had routinely briefed Defense Secretary Donald Rumsfeld. He had also briefed Vice President Dick Cheney more than once. Schroer had been an action hero, but he also had the contacts and intellectual dexterity to make him an ideal congressional analyst.
But now, about three weeks before Schroer was to begin work at CRS, he told Preece over a Chinese lunch that he had a personal matter to reveal: after years of cross-dressing in private, he was preparing to start living full time as a woman. He would also probably have sex-reassignment surgery. And so he planned to start at CRS as Diane Jacqueline Schroer, not David John Schroer.
The first thing Preece remembers blurting out at the time was something along the lines of "Why would you want to do that?" Later she stood outside her office, lit another cigarette and thought, I can't believe this is happening to me.
Schroer did not get the job. Working with some other Library of Congress officials the next morning, Preece drafted a brief script and then telephoned Schroer. She told him that the Library worried his transition could imperil his top-secret security clearance; that his appearance in women's clothing could make his contacts in the government less willing to cooperate with him; and that his impending surgeries (facial surgery to make him appear more feminine, possible genital surgeries in the future) could distract him from his job. She thanked Schroer for his honesty and said goodbye.
What Preece did that day became, not surprisingly, the subject of a lawsuit, one that was tried in August in federal court. Judge James Robertson, a Clinton appointee, is expected to rule any day. In deciding whether the Library unlawfully discriminated against Schroer, Robertson will have to rule on a much bigger and more elemental issue: How, if at all, is sex different from gender? And if you discriminate against a transsexual, is it "sex" discrimination under federal law?
Diane Schroer is a polite and engaging woman, and her outward appearance is convincingly feminine a testament to the advances in plastic surgery and to Schroer's willingness to pay tens of thousands of dollars to have herself rebuilt to reflect her mental gender. On the hot summer day I met Schroer at her Alexandria, Va., home, she was wearing shorts, and her legs appeared so smooth that it seemed rough masculine hair had never grown on them.
In the years since losing the job offer at the Congressional Research Service to a man who was the Library's second choice, Schroer has started her own security consultancy. Schroer still has powerful allies in the government. One who testified for her at last month's trial is Kalev Sepp, a deputy assistant secretary of defense and a former member of the Iraq Study Group. Sepp told the court that Schroer is "a person of integrity and complete honesty." He said her transition from male to female should have been of little or no consequence in the CRS's hiring decision.
But Schroer's honesty was called into question in this case, for the simple reason that she presented herself as male during the interview and then at the last minute revealed that she was becoming a woman. Did she lie?
Yes and no. Transitioning from one gender to another is a long process, one governed by standards of care that nearly all American medical and psychological professionals follow. If you want to undergo sex-reassignment surgery in the U.S., you must first live for a year as a member of the other gender dressing and acting as though you had been born with the other genitalia. This one-year "real-life experience," which is overseen by a psychotherapist, is designed to ensure that dilettantes give up before having their bodies permanently changed. In October 2004, when Schroer went for his Library interview, he had not yet begun his real-life experience he and his therapist had planned for him to start Jan. 1, 2005 which is why he wore a sport coat and tie.
But Schroer also said nothing in his hours of interviews about the plans to begin his real-life experience. In court, Diane Schroer explained that she thought such personal information was irrelevant to an interview exploring her professional credentials. But Schroer obviously knew that showing up to work in women's clothes would surprise fellow workers.
Preece felt as though she had been taken advantage of. She also wondered how a man in a dress would be perceived by members of Congress. Would Diane-née-David be taken seriously by people in the conservative antiterrorism community?
It's a good question. But Preece apparently failed to make any inquiries to learn the answer. She did not ask Schroer's references for their reaction to his impending gender transition; if she had, she might have discovered that colleagues like Sepp said they respected Schroer no matter her outward appearance. Nor did Preece consult a Pentagon contractor for whom Schroer had recently worked a contractor who, as it happens, knew about Schroer's plans to transition to female and says he had no problem with it. Though Preece may well have found many people in the antiterrorism community who would have been unsettled by Schroer's decision to transition, the fact that she did not even try to investigate suggests that she had already made up her mind after her lunch with Schroer.
Indeed, the Library does not deny that it discriminated against Schroer because she was transgendered. The trouble for Schroer is that it's not explicitly illegal to discriminate against the transgendered, because no federal law prohibits discrimination on the basis of gender identity.
And yet Title VII of the federal Civil Rights Act makes employment discrimination because of sex illegal. Could that statute help Schroer? Does one's "sex" include being transgendered? At the trial last month, Schroer's expert witness, a University of Minnesota psychologist named Walter Bockting the incoming president of the World Professional Association for Transgender Health testified that sex is a multifaceted notion composed of several elements, one of which is one's mental gender identity. Part of his evidence was that thousands of babies are born each year with uncertain sex. They have XY chromosomes but no visible male sex organs. Or they have XX chromosomes but do not appear, outwardly, to be normal girls. Or they have even more complicated chromosomal constructions XXY, for instance which render their sex entirely indeterminate.
These individuals, who are called intersexed, are usually assigned a gender by the obstetricians who deliver them. As intersexed children grow up, they and their parents must decide whether they agree with the sex assigned to them at birth. That's an understandable, if fraught, policy, but if intersexed people can decide what their sex is, why can't the rest of us? What, precisely, is sex?
The commonly accepted definition is whether you have a penis or a vagina. But then there are those thousands of intersexed kids, as well as thousands of transgendered people who feel that their outward morphology doesn't accurately represent their mental conception of themselves. It seems likely that sex is some combination of chromosomes, psychology and environment. Even the Library of Congress's expert witness acknowledged this: during the trial, Johns Hopkins physician Chester Schmidt said that after all the research is completed, he believes "there will be some biologic, some psychologic, some combination of psychological etiologies" that lead to gender identity in the transgendered. Sex, in other words, is not just what you have between your legs; it is what you have between your ears.
David Schroer was not hired on the basis of sex on the basis of his sex being strange and unusual to Charlotte Preece and her colleagues. In the past few years, gay activists have argued that we need a new statute to outlaw discrimination against gays, lesbians, bisexuals and transgenders. But there is a compelling argument to be made in this case that at least with respect to transgenders, the current statute already applies. Schroer's attorneys at the American Civil Liberties Union argue that Title VII already prohibits discrimination against transgendered people. Although their sex may be more complicated than the composition of their chromosomes, that is no reason people like Diane Schroer cannot do their jobs.