Friday, 26 September 2008

I Am Not A Lawyer

IANAL... but for the second time, I'm going to give an amateur (and no doubt amnateurish) analysis of a legal case. A Civil case. And not even in Australia, but the USA, and in different jurisdictions, yet.

Well, one's reach should always exceed one's grasp. If I'm going to be ambitious and make a public spectacle of myself, no point in half measures.

The case has been adjudicated, though may be appealed. It's the case of Colonel Diane Schroer, US Army (Retd) vs the Library of Congress, as I've blogged about before.

The transcript of the judgement is available, and I suggest you read it. There have been many excellent analyses by legal professionals (and some not so wonderful ones by non-legal bloggers). The best analysis I've seen is by a TS Employment Law expert, Assoc. Prof Jillian T. Weiss. I'll just add my own comments, amplifying hers.

The facts: The Library of Congress offered Col Schroer a job, a position that was really important from a national security viewpoint. Basically the LOC's "guru" on International terrorism, advising military and political leaders of the highest level. Col. Schroer was deemed by far the best candidate. I'll quote her own words in testimony before a Congressional Committee to show why:
I served 16 years in Special Forces including tours as a detachment commander, company commander, and battalion commander, accumulating 450 parachute jumps. I participated in combat operations in Panama and Haiti as well as missions in the Middle East, Central America, Africa, and Europe. Additionally, I initiated humanitarian demining operations in Namibia, Rwanda, Mozambique, Botswana, Zambia, and Zimbabwe.

As the Senior Assessment Director, I orchestrated the Program Objective Memorandum or “POM” for US Special Operations Command, reviewing 5,000 programs covering all aspects of Special Operations for four years. I knew every unit, piece of equipment, operation, exercise, development program, and construction project; I knew where every dollar was supposed to go and how it was spent.

Following the attacks on 9/11, I was selected to organize and direct a classified 120-person interagency organization responsible for all Department of Defense operations against the country’s most significant terrorist threats and all long-term planning for the Global War on Terrorism. After almost two years of successful operations, with 25 years in the U.S. Army, I retired in January 2004.

Since my retirement, I have been intimately involved in Homeland Security, Critical Infrastructure Protection, and Maritime High-Risk Counterterrorism Operations.
You can see why they chose Colonel Schroer. The record of experience was unmatched.

But then Colonel Schroer told her new employer - a verbal contract had already been entered into - that she was transitioning, and thought it would be best if she started her new position as Diane, not David. There were still many months before she'd be taking up the position anyway.

Instant Panic and Consternation. Followed immediately, the next day, by recension of the employment contract.

Various excuses were offered in the court case that followed. That Col Schroers credibility with clients would be damaged (though she gave references, and they didn't bother checking with them). That she'd need as new security clearance (though they didn't follow their own procedures to check this). That she was untrustworthy (though they commended her for her honesty). That the medical aspects of transition would somehow interfere with her work (though they didn't inquire about that, merely assumed it).

But basically, they contended that discriminating against someone who was transsexual was not illegal. They had a point, in my opinion. But the judge disagreed.

Justice was served. And this is a big deal, not so much because it affects a lot of transpeople - it doesn't - but because of the arguments the Judge used. Some of which I don't know how he could express with a straight face. I couldn't.

This was about Transphobia, pure and simple. But it required some creative and unreasonable (IMHO) interpretation of the law for justice to be served.

Remember, this is only a District Court, not a Circuit Court. And I'll quote from the Judgement:

...the Seventh Circuit held that discrimination based on sex means only that "it is unlawful to discriminate against women because they are women and against men because they are men."

The Ninth Circuit took a similar approach, holding that Title VII did not extend protection to transsexuals because Congress's "manifest purpose" in enacting the statute was only "to ensure that men and women are treated equally."More recently, the Tenth Circuit has also held that because "sex" under Title VII means nothing more than "male and female," the statute only extends protection to transsexual employees "if they are discriminated against because they are male or because they are female."

The Judge had to say, in effect, that all three circuits were full of it in order to rule as he did.

And he did it by adducing a theory of law that is only espoused by the most Arch of Arch-Conservatives - that the plain letter of the law is all, and intent is meaningless.

It is a Judo argument, turning their own words against them. It's also the direction the most Right-Wing of the El Supremos are steering the law, much to my discomfort. I'm right-wing, but not that right-wing.

Oh, but it gets better.

The Library asserts that the introduction and nonpassage of H.R. 2015 and H.R. 3686 shows that transsexuals are not currently covered by Title VII and also that Congress is content with the status quo. However, as Schroer points out, another reasonable interpretation of that legislative non-history is that some Members of Congress believe that the Ulane court and others have interpreted "sex" in an unduly narrow manner, that Title VII means what it says, and that the statute requires, not amendment, but only correct interpretation.
When I saw that, I laughed out loud. Not just chuckles either, tears were streaming down my face.

Such a contention would only be "reasonable" - being defined as "not certainly known to be completely impossible" - in a court of law.

Does anyone seriously believe that a single congresscritter who voted against ENDA did so purely because they thought it was un-necessary, that trans-people were already protected? Does anyone believe that a single congresscritter who voted for a Trans-Exclusive ENDA that only covered Gays did so because Trans people didn't need the protection?

If so, I have this wonderful matching Harbour Bridge and Opera House in Sydney to sell you. Only used by a Little Old Lady from Parramatta. I'll throw in Tasmania for free.

Even those who argued this point in an attempt to justify Trans-Exclusion in ENDA did so with no enthusiasm. In view of the decisions by the Seventh, Ninth and Tenth circuits, it was too self-evidently absurd, and they soon stopped trying to argue the point. It was all about Pragmatism, not Principle, "Incrementalism".

The Judge is a very, very clever jurist. By giving the reasons he did, those conservative judges in other jurisdictions are caught in a zugzwang. They must either affirm conservative principles, and abide by the strict letter of the law, or appear to be one of those terrible liberal "judicial activists" they fulminate against. This is Judicial Judo at its finest. More liberal judges will just have to try to keep a straight face as they give their oh-so-conservative judgements that finally dispense, rather than dispense with, Justice.

Coming Up : another case, this one criminal. And involving Colorado Law.

UPDATE : This is what the differently-sane people at The Traditional Values Coalition said.
She-Male Wins Lawsuit Against Library Of Congress
As an aside, "She-Male" is a term denoting a pornographic transgender performer, and is only used by pornographers and the fans of pornography.
September 25, 2008 – Former Special Forces officer David Schroer, who now calls himself Diane, has won a federal lawsuit against the Library of Congress. David had been offered a job with the Library of Congress in 2005, but the offer was withdrawn after his potential employer learned that he was going to have a sex-change operation. He had interviewed for the job as a man, but then told them he was going to come to work as a woman.
...
...
Schroer’s Political Agenda

Judge Robertson’s claim that the Library of Congress violated Title VII of the 1964 civil rights act by not hiring Schroer is incorrect – and judicial activism. Title VII only addresses the issue of males and females – not confused individuals who think they’re the opposite sex. Robertson’s use of this section is illegitimate and should be appealed to a higher court.

A person who thinks he’s the opposite sex is medically diagnosed as having Gender Dysphoria, which is still listed as a mental disorder in the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM-IV). A person who wears opposite sex clothing has a mental illness described as transvestic fetishism in the DSM.

There is currently no federal law in effect that provides cross-dressers, transsexuals, drag queens, or she-males federally protected class status. However, efforts have been underway in Congress for years to pass legislation doing this. The brief filed by the Library of Congress in this case points out that Title VII does not protect transgendered persons from discrimination.

One of those laws is the Employment Non-Discrimination Act (ENDA), which has been blocked from passage by the aggressive work of TVC. ENDA originally contained protections for “gender identity” but was stripped from the bill by homosexual Barney Frank in order to get it passed.

Pro-homosexual legislator Robert Andrews (D-NJ) held a hearing in July 2008 featuring a panel of so-called “transgendered” individuals – including David Schroer who described his lawsuit against the Library of Congress. TVC staff attended this hearing and made videos available of the testimonies of these sexually confused individuals on the website.

By providing special legal protections in the law for transsexuals, homosexuals, and bisexuals, Congress will be opening up a pandora’s box to also “protect” 30 different sexual orientations listed in the DSM.
There's currently a debate within both the American Psychiatric Association and American Psychological Association as to whether the classification of GID as a "mental disorder" is warranted. On one hand, it's a convenient way of encoding the diagnosis of a medical syndrome - similar to the encoding of the distress suffered by rape victims. On the other hand, it's been claimed that it stigmatises those with it, and leads to persecution by ignorant bigots. This is exhibit A for the latter proposition.

It's more important to some that they be allowed to persist in their persecution than that they win the War on Terror. And no lie, no untruth, no malicious libel is too odious in such a "worthy" cause.

They're a lot like many on the Far Left in that respect. Blair's Law in action.
The notion of far right and far left groups allying with extremist Islamists is sometimes called "Blair's Law" ("the ongoing process by which the world's multiple idiocies are becoming one giant, useless force") by conservative and libertarian bloggers
And I, no matter what changes I may have been through, have always been, and remain, a most Conservative Blogger.

7 comments:

Nica said...

What goes around, comes around. Doesn't it, Zoe. I want to laugh, but somehow I can't.

justme said...

To be fair, the judge did make one argument which I thought had real merit, though it wouldn't hold a lot of weight with those Arch-Arch-Conservatives because they simply wouldn't accept the analogy as valid, and would see it as judicial activism: He pointed out that no sane person would say that religious freedom laws protect you from being discriminated against for being Catholic, or for being Jewish, but not for converting from one to the other. In essence he was making the point that transphobia *is* in fact a form of sex discrimination. And I don't think the analogy is a stretch at all.

Anonymous said...

"And he did it by adducing a theory of law that is only espoused by the most Arch of Arch-Conservatives - that the plain letter of the law is all, and intent is meaningless."

I suppose you mean neocons and pseudo-liberals (who are really socialists-lite), who think that the writing of laws 200 years ago should be interpreted with modern definitions of the words and phrases in them and now dominate all levels of government thanks to a populace that has been given over to high time preferences and basic ignorance of history and the Constitution, because any conservative worth their salt would use the original intent of the writers who wrote and passed the laws to inform them how to interpret them and apply them to the relevant cases and realize that rulings by judges interpreting the laws 200 years after they were passed is likely to have a less intuitive grasp of the law than the people who wrote the original laws and passed them and the judges that ruled on those laws shortly thereafter. 99%+ of laws passed in the U.S. are unconstitutional anyway, but the Library of Congress, which serves to make and keep the records of Congress open to the public, is not, so we must look at this case more closely: though it is unconstitutional (whatever the courts today say) for the federal government--state governments are another thing--to prohibit discrimination by private companies and corporations, in which the federal government has no ownership, it is a different matter when the federal government is itself the hirer; thus, I would not want to the federal government to be in the business of discrimination on bases without merit, because it does not have the Constitutional authority.

Chris said...

I wanted to pass this link along, although it's probably old news
http://www.washingtoncitypaper.com/blogs/sexist/2008/09/26/local-transgender-woman-will-not-be-americas-next-top-model/

Zoe Brain said...

Anonymous- here's a gift:
...... ,,,,

You may want to use a few of those next time, please?

The Law is, in theory, accessible to everyone - so again, in theory, words should be interpreted to have their plain meaning. One should not have to deal with words such as Champerty and Maintenance, Soccage and Usucaption. It's not the obscure words that are the problem, it's words that do not have their usual meaning.

However... intent of the legislators should also be examined in it's larger meanings. So "Freedom of Speech" should be extended to TV, radio etc."Freedom of the press" extended to roneos, photocopiers, and hence other recorded media.

This is especially true when dealing with new technology which didn't exist at the time the law was passed, but also includes enlarged principles. One can never cover every example. "Race" doesn't just mean the concept as it was understood in 1964.

These two worthy aims are incompatible of course.

It is up to the legislature to perform maintenance (as opposed to commit the crime of Maintenance) on the law.

Battybattybats said...

Again it comes down to philosophy. The value of the law is in two parts, it's measurable effect and the philosophical principles which it tries to protect and enforce.

Both are about philosophy. And the one can indeed tell us much about or even invalidate the other.

The issue of 'intent' is much more easilly and clearly definable when done via philosophy especially when attempting to apply a law to new technologies or issues.

It's also a good tool for measuring the compatibility of new laws, changes to laws etc within the existing framework or for challenging the validity, cogency or ethics/morality or of a law.

The danger of properly applying philosophy to law or of judging law by philosophy, other than which school of philosophy to use, is that it would cause susbtantial change, change that would lead to more equality fairness and justice than currently exist but change that would be extensive, costly and involve upsetting many people who like the injustices, loopholes and complex archaic traditions just the way they currently are.

Leah said...

I can't wait for it to become the law of the land and watch the fundies heads explode.