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2008-09-20 00:15

I totally want to bathe and anoint in oil the feet of James Robertson, U.S. District Court Judge for the District of the District of Columbia (I don’t see how you can logically avoid using the District twice in that phrase, even though I mostly see it used only once in legal citations [wrongly, in my view, unless you write the District of Columbia District, in which case you’re still stuck with using District twice]).

Yesterday, Friday, Robertson decided—displaying reasoning of such extraordinary clarity (please, read the decision!) it’s frankly mind-boggling (though, perhaps, understandable coming from someone inured to confronting daily the confounding Two- District -Usage Dilemma)—that a transgendered woman, Diane Schroer, who had applied for, been enthusiastically offered, and accepted a plum job with the Library of Congress while yet presenting as male under the name David Schroer, subsequently suffered prima facie unlawful Title VII discrimination “because of sex” when, before actually embarking on the new duties, Schroer revealed to her new boss, Charlotte Preece, that she was transgendered and in transition and would be embarking on the new duties presenting as a woman, whereupon the job offer was instantly withdrawn and the position handed over to a significantly less-qualified applicant.

How many American judges would instead have sneered distastefully over the facts of this case and reflexively advanced the tried-and-true Specious-Narrow-Argument Counter-Attack: e.g., that Title VII (which prohibits discrimination “because of sex”) says nothing about, and therefore does not prohibit discrimination against, transsexuals? It’s a proven technique. Just look at the way “Whizzer” White, Burger, et al. reflexively advanced their own version of the SNACA, smugly announcing in Bowers v. Hardwick that the Constitution (even after the Supreme Court’s prolonged fleshing out of citizens’ right to privacy, specifically with respect to questions of sexual intimacy, in the line of decisions subsequent to Griswold v. Connecticut) does not recognize “a fundamental right to engage in homosexual sodomy” and that it is “facetious” to assert that such a right is “implicit in the concept of ordered liberty.”

The same sort of self-righteous SNACA, of course, could be asserted against nose-picking, earwax-excavating, and crotch-scratching. Is the right to scratch one’s crotch “implicit in the concept of ordered liberty”? If you say yes, it sure seems as though you’ve made yourself into a huge figure of fun. If you say no, then you’ve surrendered to the expanding Executive branch yet one more human action for surveillance and criminal prosecution that the Founding Fathers, if they thought about such things at all, surely imagined would never, ever be a subject of Federal legal sanctions.

Robertson’s heroic purity, his intellectual nobility, comes from his pointing out, simply and obviously, like the child ostensively demonstrating the Emperor’s nudity, that the plaintiff was discriminated against, plainly and flagrantly, because of sex:

The evidence establishes that the Library was
enthusiastic about hiring David Schroer -– until she disclosed
her transsexuality. The Library revoked the offer when it
learned that a man named David intended to become, legally,
culturally, and physically, a woman named Diane. This was
discrimination “because of . . . sex.”

Yes! Thank you for seeing and pronouncing the irrefutable obvious, James Robertson! You deserve some sort of plaque mounted somewhere, maybe in the Library of Congress, maybe mounted and polished daily for the next 20 years by the vicious and indefensible Charlotte Preece, who after enthusiastically supporting and eagerly hiring her singlehandedly skippered the attempt to scupper Diane Schroer’s employment upon discovering her transsexuality.


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