People Who Live in Glass Houses (Revised)


          A federal judge has ruled that the Library of Congress violated Title VII when it refused to hire a prospective employee who was a male-to-female transsexual.  Specifically, the plaintiff, who applied for a position with the Congressional Research Service (part of the LOC) while having the appearance and dress of a man, was made a job offer prior to CRS learning of the plaintiff’s intent to undergo surgery for “transitioning from male to female.”  The job offer was then withdrawn.  Judge Robertson ruled that by taking this action in response to the prospective employee’s “decision to transition, legally, culturally, and physically, from male to female, the Library of Congress violated Title VII’s prohibition on sex discrimination.” 

            The LOC, of course, is a legislative branch entity and falls under the jurisdiction of the Committee on House Administration.  The chairman of that committee, Robert Brady, has issued a statement which reads in part that “I applaud the Court’s decision, which should serve as a wake-up call to organizations that fail to include gender identity in their employee non-discrimination policies.” 

            It turns out, though, that one of those organizations is the U.S. House of Representatives.  Specifically, the Committee on House Administration, which has jurisdiction over employment of persons by the House, publishes a Model Employee Handbook which contains no mention of gender identity. 

After reviewing his own website, Chairman Brady might want to check the Rules of the House, which provide that a member, officer or employee of the House “may not discharge and may not refuse to hire an individual, or otherwise discriminate against an individual with respect to compensation, terms, conditions, or privileges of employment, because of the race, color, religion, sex (including marital or parental status), disability, age, or national origin of such individual, but may take into consideration the domicile or political affiliation of such individual.”

Note that the language relating to sex specifically includes marital or parental status, but says nothing about gender identity. This omission was most definitely not unintentional, as the House was well aware, at the time that it adopted its rules in January 2007, that neither sexual orientation nor gender identity have generally been considered to be included under the federal employment laws. In fact, the House was aware of this specific dispute regarding the LOC. Surely, then, the House’s failure to include gender identity (or sexual orientation) in its rules was far from inadvertent.

Indeed, as noted in Judge Robertson’s opinion, a bill that would have banned employment discrimination on the basis of both sexual orientation and gender identity (H.R. 2015) was introduced in the House during this very Congress. However, Representative Barney Frank, the principal sponsor of the bill, withdrew the gender identity provisions on the grounds that they were too controversial to pass the House. The revised version of the bill, entitled the Employment Non-discrimination Act of 2007 (H.R. 3685), banning discrimination on grounds of sexual orientation only, passed the House but has not been enacted into law.

If Chairman Brady thinks it important for organizations to include gender identity in their employment discrimination policies, perhaps he should start with his own organization. He should not impose new employment discrimination laws on the LOC that the House refuses to adopt for itself.