(Originally posted on Daily Kos.)

On November 19, the California Supreme Court agreed to hear a lawsuit that we at the ACLU, the National Center for Lesbian Rights, Lambda Legal, and Equality California filed the day after the election, asking the Court to strike Proposition 8 down. Here’s what our case is about.

The California Constitution can be altered in two ways. The way most people know about is to simply amend the Constitution. Amendments are meant for less serious constitutional changes and are voted into effect by a simple majority of the voters. Proposition 8 was done as if it were an amendment. The other way to change the California Constitution is through what’s known as a revision, which is what the law requires for major, fundamental changes. Revisions have to be approved by 2/3 of each house of the legislature before the question is put to the voters.

In our case, we’re arguing that Proposition 8 is invalid because it calls for such an immense change in the California Constitution that it must be handled as a revision, rather than through an amendment.

Why is Proposition 8 a major change? Because it jettisons two of the central ideas on which the California Constitution — like the federal constitution — is based. First, the very idea of constitutional government and of the rule of law itself is that everyone is equal before the law, that there is one set of rules for everyone. Equality isn’t just a nice goal in the California Constitution’s Declaration of Rights; it’s a principle that resonates throughout the entire document. The second idea is that the very purpose of a Declaration of Rights (or a Bill of Rights in the federal constitution) is that it lays out rights which can’t be taken away just because a majority of people would like to do that. The guarantee of free exercise of religion means, for example, that unpopular religious groups can’t have their right to worship taken away.

Proposition 8 takes something the California Supreme Court already found to be a fundamental right — the right to marry — away from a historically disadvantaged minority — gay people. To put it bluntly, Proposition 8 put a cherished right of a protected minority up to a popular vote. That, we say, is such a drastic change in what the Constitution allows, a rejection of the very idea of protected rights and equal justice, that it must be treated as a revision of the Constitution, requiring the approval of the legislature before a vote. (You can read more about the case here).

Marriage isn’t the only thing at stake here. If the California Constitution can be amended to take the right to marry away from gay people, then any fundamental right could be snatched away from any group that’s outnumbered at the polling places. As one of the signs seen at the massive protests that have taken place around the country in the wake of Proposition 8 says, “You may not be gay – but you might be next.” That’s what we’ll be telling the California Supreme Court when arguments are held next March in our case, Strauss et al v. Horton et al. It’s difficult for me to think of a greater threat to the principles of individual freedom for which the ACLU stands.

— Matt Coles & Chris Hampton

To learn more about Prop. 8 and tools for advancing LGBT equality in your community, visit Get Busy, Get Equal!

We won the Florida adoption case yesterday. A Miami judge ruled that the ban on adoption by gay people was unconstitutional. And I got two new heroes out of the case.

The first hero is Cindy Lederman. She’s the judge who finally had the guts to hear the evidence on gay people as parents. I wrote earlier this week about the evidence we gave her, and how it showed that sexual orientation has no connection to parenting ability. Judge Lederman also had the insight to understand what that expert evidence meant, and its legal significance. Here’s how she put it:

As a result, based on the robust nature of the evidence available in the field, this Court is satisfied that the issue is so far beyond dispute that it would be irrational to hold otherwise; the best interests of children are not preserved by prohibiting homosexual adoption.

And then she did what followed inevitably from that finding: She declared the law unconstitutional and allowed our client to adopt his sons. (You can read her opinion here.)

Read more…

(Originally posted on Daily Kos.)

Tomorrow we’ll learn the outcome in the ACLU’s latest challenge to Florida’s law banning adoption by lesbians and gay men. The judge has told us that she’ll announce her decision in open court.

We’re cautiously optimistic about the outcome because this time (this is the sixth challenge to the law, the fourth from the ACLU), we were finally able to get the court to look at the scientific facts about gay people as parents.

The state made just about every argument it could — no matter how repulsive or discredited — to justify a blanket ban on adoption by gay people and no one else. Gay people, Florida says, are more prone to alcohol and drug abuse, are more likely to be depressed and suicidal, and are more likely to have unstable relationships. We, the state insists, are more likely to engage in domestic violence, and our children are more likely to be gay and to be psychologically damaged by abuse from people who are homophobic.

To make the case that Florida’s ban was based not on science but on ignorance (at best), we assembled what is probably the finest collection of child welfare, psychology, sociology and medical experts on these issues ever presented to a court. They included (among others): Dr. Michael Lamb, a world-renowned expert on children’s development, who is formerly the Chief of the Section on Social and Emotional Development at the National Institute of Child Health and Human Development and now chair of the Department of Psychology at Cambridge University; Dr. Anne Peplau, a Professor of Psychology at UCLA and a leading authority on couple relationships; Susan Cochran, a psychologist and epidemiologist at UCLA’s Department of Public Health, and a leading authority on the demographics of health and psychology; and Dr. Frederick Berlin from Johns Hopkins, probably America’s foremost authority on child sexual abuse.

We used this remarkable cast to establish not just that the state was wrong about gay people as parents, but that no thinking person who understood the science does — or could — disagree. In that, our experts were materially aided by the experts for the state.

Here’s what our team established: The science does show that while gay people as a group have higher rates of depression and substance abuse, other demographic characteristics (including ethnicity and income) correlate with similar or even higher rates. However, these groups are not excluded from adopting. Those problems occur in every population group. That is why adoption systems are designed to screen individuals and not to rely on group generalizations.

As to the persistent myth that gay people are more likely to be pedophiles, cited by some of the state’s witnesses, there is no scientific support for it whatsoever. Nor is there any basis for the claim that gay couples are more prone to domestic violence. The science shows that children of gay parents are not more prone to be gay. Perhaps more important, since there is nothing wrong with being gay, the state couldn’t use its power to try to make sure there are fewer of us even if that were possible.

Finally, and most important, not a single scientifically supportable study has shown that the children of gay parents are disadvantaged in any way because of their parents’ sexual orientation. The consensus in all the relevant scientific fields, and among all of the major child welfare organizations — the Child Welfare League, the American Academy of Pediatrics, the American Psychological Association, the AMA and the National Association of Social Workers — is that sexual orientation has nothing to do with ability to parent, and that banning adoption by gay people hurts children by keeping good parents out of the system.

The trial, we think, established not just that sexual orientation has nothing to do with ability to parent. We think it established that there aren’t two respectable scientific views on gay people as parents. There is, instead, a scientific consensus, and against it, an ideology based on beliefs without support in the real world.

We also hope the trial established the cruelty and foolishness of taking prospective parents out of a child welfare system collapsing under the weight of far too many abandoned and neglected children, and far too few adoptive parents. This we did less with the experts than with the story of our client, Martin Gill.

Four years ago, Gill took in two half-brothers — one four years old at the time, and the other still a baby — when a child abuse investigator asked him for help. The placement was supposed to be temporary, but a plan to place the kids with their grandmother fell through. At the time, both boys had significant health problems and the older was withdrawn, uncommunicative, and behind in development.

Today the kids are happy, healthy, and are wonderfully rambunctious and ordinary. And that, of course, is the point. Kids deserve the chance to a childhood, and there could be nothing meaner than denying a kid — who has already seen more pain than anyone should — a shot at one.

Check back tomorrow to see if the court agrees with us.

Want to learn more about the rights of LGBT parents? Get Busy, Get Equal!

After the California Supreme Court’s brilliant, inspiring decision in May, Tuesday’s loss at the polls is a bitter pill. That it follows all the wonderful stories of people getting married, and the Connecticut decision that seemed to put us on a roll, makes it all the more difficult to accept.

But indulge me for a look back in history. In 1982, we passed a domestic partnership law in San Francisco, the country’s first. Despite having carefully laid the groundwork, it was vetoed without warning, and a vote essential to an override defected the next day. It took us seven years to get it passed again. And when we did, our opponents got enough signatures to put it on the ballot in 30 days. We ran one of the most expensive local initiative elections in California history. And we lost, 50.5 to 49.5. In 1990, we put it back on the ballot again and won. But the next year, we had to defend it again against an attempted repeal initiative.

Even in famously liberal San Francisco, we had to go through the process of trying to pass a simple domestic partnership law five times, and we lost twice. If you run up an unbroken string of victories in any battle for civil rights, that simply means you waited too long to get to work. Change that matters is never smooth or easy.

It will be important to go over the campaign carefully and learn from our mistakes. But we need to resist the temptation to blame ourselves for the loss. The perfect campaign hasn’t been run anywhere yet. Thousands of very good people worked their hearts out on this, and they deserve our thanks. The victims of an injustice should never be blamed for failing to end it unless they don’t try. And you can’t say that we didn’t try, and try damn hard.

We didn’t lose by much. Eight years ago, on virtually the same question, we could only get 39 percent. On Tuesday, we got over 48. While our opponents may be celebrating now, the handwriting is on the wall. They won’t be able to hold on much longer. There are other states where we’ll be able to get marriage in the next few years, and others where we’ll get domestic partnerships and civil unions.

We’ll be back in California. And we’ll win. You can depend on it. To learn what you can do to work for marriage for lesbian and gay couples, visit www.aclu.org/getequal.

After weeks of working tirelessly on CA’s No on 8 campaign, LGBT Project Director Matt Coles is waiting for the election results and reflecting on the campaign.

During this excruciating wait for the polls to close and the results to be reported on California’s marriage initiative, I let myself think about history for a few moments.

Intimacy for same-sex couples was a crime in California until 1974. There wasn’t a single law recognizing the relationships of same-sex couples—anywhere in the U.S. — until the Berkeley School District passed one in 1984. San Francisco’s groundbreaking domestic partnership law, passed in 1982, was vetoed by the very same Dianne Feinstein who just a few days ago made an impassioned plea against Proposition 8, the proposal to take marriage away.

We’ve come a long way in what is, in cultural history, a very short time.

And laws may not be the best way to measure that change. A few years ago, I had lunch with George Hecht, a man who supported a lot of LGBT organizations. George was then in his 80’s. He told me about how hard it had been to keep a relationship alive in the 30’s in the 40’s: the absolute need to hide it from employers, co-workers, even from close friends and family. The details were painful to listen to. He looked up wistfully as he told me how he and the man he loved had managed for a time, but that eventually, it had all been too much.

Society in the mid 20th century did everything it possibly could do to make sure that gay people led the sad, isolated lives it said were our lot. Some people, like Del Martin and Phyllis Lyon (and countless others I got to know as a young lawyer in San Francisco in the 70’s), were able to fight it and forge ways of living despite the social pressures. But there were many others who weren’t. I think about those damaged lives, and I grieve.

One of the things that has struck me as I’ve worked in California for most of the last two months on the campaign is the number of straight people who care as passionately about this as I do: the real estate agent who asked me if I had an extra “No On 8” sticker because it mattered so much, the server who asked me if I knew where to volunteer, my college roommate, who, unbeknownst to me, was volunteering in a phone bank.

I wish I knew for sure how this election is going to turn out. But talking to those folks around California over the last few months has made it clear to me that we’re not going back to George Hecht’s youth, or even to mine. In 1978, it was inconceivable that a majority of Californians would support marriage for same-sex couples, then or in 50 years. Today, the nail-biter is whether that happens today or in a few years.

It would be great to win, and it is always great to make the law carry out the promises of the Constitution. But the point really is to make it possible for millions of people to live their lives, and not have to hide their love. We’re winning that for sure.

For additional information on Prop. 8 and tools for advancing LGBT equality in your community, visit www.aclu.org/getequal.

There’s a secret weapon in the campaign against Proposition 8 in California, the ballot measure that would eliminate marriage for gay couples in that state.

It’s you — and the power of your personal story told to your friends, family, neighbors and acquaintances.

The No on 8 Campaign has built a fantastic new tool for you to spread the word among your personal network.

Use it to email everyone you know in California to tell them how unfair Prop 8 is and what this measure means to you personally.

It’s easy. It’s free. And there’s no more persuasive an advocate for fairness and equality than you.

Even if you think a friend of yours in California is going to vote the right way, use this tool to email him or her anyway. We fear that many good-hearted folks will be discouraged by the length of the ballot from voting on state propositions. And we know some who support marriage for gay couples will be confused by the measure and vote yes. So even a reminder to be sure to vote on Proposition 8, and to vote NO, is important.

Thank you in advance for helping spread the word.

Want to learn more about how to fight for relationship recognition for same-sex couples? Visit the ACLU LGBT Project’s online toolkit, Get Busy, Get Equal!

Frankly, I’m worried about Proposition 8 on the November California ballot. That’s the initiative that would end marriage for same-sex couples.

There are reasons to feel good. The latest California Field Poll shows us ahead by a very respectable 55 percent to their 38 percent. But when you look beneath the surface, the situation is a little more complex. All of the in depth research appears to show: 1) we have a solid 40 to 42 percent; 2) they have a solid 38 to 40 percent; 3) we’re both chasing the remaining 16 to 20 percent. That remaining 16 to20 percent is made up of voters who are deeply conflicted; they don’t like marriage for same-sex couples, but they also don’t like the idea of voting to take someone’s rights away.

What the Field Poll and some other polls like it suggest is that we are getting most of those conflicted voters right now. But it doesn’t tell us that we’ve completely convinced them — just that at the moment they are resolving the conflict our way. That may well reflect the fact that almost all of the news coverage so far has been positive, and the other side hasn’t even begun to hit yet on television.

But they are going to start hitting soon. We made a great television ad buy early on. But they have now bought a week ahead of us. More ominously, they’re now out-fundraising us significantly. They’ve taken in over $16 million compared to our $11 million (and they only pulled ahead after Labor Day). And the stuff is pouring in, mostly in $1,000, $2,500 and $5,000 chunks, mostly driven by the Mormon church .

The kinds of gifts the Mormons are bringing in are just not coming in on our side . We’ve already raised more than has ever been raised on a progressive issue campaign in California. But the forces of intolerance see this as the Waterloo of the "culture war." And they are backing up what they say with money.

If they keep outdoing us on money, they’ll get up on television first, they will saturate, and they may well redefine the issue for those conflicted voters. If they do, our lead will evaporate. And our chances of winning will become remote.

We can still win this, but our community has got to start supporting the effort in a big way now, or we are done for. Please, give as generously as you can. Here’s a link where you can do so .

I don’t have to tell you how important it is that we defeat Prop. 8. With marriage secure in California, we will be poised to win marriage in critical states like New Jersey and New York in a year or two. We could have the fight for equality more or less finished in less than a generation. But if we lose the largest and most economically important state in the nation, and if we lose because the voters reject marriage, winning will be at least an additional generation away.

Want to learn more about how to fight for relationship recognition and other LGBT rights in your hometown, county, or state? Visit the ACLU LGBT Project’s online toolkit, Get Busy, Get Equal!

The trial in Diane Schroer’s case against the Library of Congress came to a close on Friday afternoon in federal court in Washington, D.C., Ms. Schroer is the decorated Special Forces Colonel who, after retiring, was offered a job as a terrorism researcher for the Library, only to have it snatched away when she told her boss she planned to start work as Diane, not David.

Reading the tea leaves of a judge’s comments during a trial is always a risky business. It is easy to read too much into casual questions, into annoyance that can really be about pace or focus, and so on. And sometimes, things look very different after a trial ends and you begin to think about how to decide.

With that warning, though, by the end of the trial here, the case seemed pretty clear. No one really thought Diane Schroer was “dishonest” or “lacked integrity” for not saying when she applied for the job that she was going to become Diane. (The Library had suggested it had lost confidence in her honesty and integrity since she didn’t.) And no one really tried to find out if she’d have any trouble holding on to her security clearance after she transitioned (the Library said it was very worried, but it did nothing to find out if there could be a problem). The Library wouldn’t hire Ms. Schroer because she was becoming Diane.

So in the end, it all seems to come down to what we mean by sex and sex discrimination. Or, to put it a little more precisely, whether a person’s sex includes gender identity, and whether sex discrimination includes gender identity discrimination.

The judge heard expert witnesses from both sides on what sex means. Ms. Schroer’s was Dr. Walter Bockting, who testified that sex is made up of several factors, including chromosomes, anatomy, and a person’s sense of their sex—their gender identity. To the government’s expert, Dr. Chester Schmidt, sex is chromosomes. He said only biologically determined factors could be a part of sex. It would, according to him, be too messy otherwise. Gender identity, Dr. Schmidt said, could be biological, but there’s too little evidence to know yet.

So now it’s up to the judge to figure out just what that simple, charged, deeply important word sex means.

To the government, sex meant men and women by either biology or body (they aren’t clear about which) when the 1964 Civil Rights Act passed. It has to mean that forever unless Congress changes it.

To Ms. Schroer and the ACLU, gender identity — a man’s sense of himself as a man and a woman’s sense of herself as a woman — has always been a part of a person’s sex. Congress may not have thought about people for whom chromosomes, anatomy and identity did not line up, the ACLU says, but that’s beside the point. We don’t refuse to apply laws to unanticipated situations; if we did, we couldn’t function as a society.

We should know what the judge thinks fairly soon. Stay tuned.

Want to be part of making equality a reality for transgender people? Get busy! Interested in making change in your community on a variety of LGBT issues? Get equal!

Diane Schroer’s case against the Library of Congress went to trial on Tuesday in U.S. District Court in D.C. The basics of the case are pretty well known. As David, Schroer spent 25 years in the Army, and retired as a decorated full Colonel in the Special Forces. Her specialty at the end was counter-terrorism.

After retiring, she applied for a job as a Research Specialist in Terrorism and International Crime at the Library of Congress. She got it. But when she told her prospective boss that she was transitioning from David to Diane, and wanted to start work as Diane to minimize any fuss, things changed. The Library decided that as it turned out, she was not a good fit and yanked the job away. Diane came to the ACLU LGBT Project and we sued.

There’s not much dispute about what happened, just about what it means. First, there is a disagreement about the law. The government insists that the law allows it to refuse to hire someone because she or he is transgender. The ACLU says (to simplify a bit) that what the Library did is sex discrimination because the Library was more than happy to hire Dave, but wouldn’t hire Diane with the exact same abilities and qualifications.

Three times, the Library has asked the judge to throw the case out on the basis that what it did is not sex discrimination. So far, he has refused. More about that later.

The other disagreement, more subtle but ultimately very similar, is over how people should think about sex and gender identity. That dispute is what has been unfolding during the trial.

The trial is being held in the William Bryant Annex to the U.S. District Court in D.C. The Annex is a new building, and a clear attempt to get away from the massive block type of architecture that defined federal buildings in Washington from the 30s through the 70s. But if the Annex presents the world a façade of hemispheres and broken surfaces, it is no Bejing Bird’s Nest. It’s a distinct but still tentative step away from old D.C.

The trial began with an opening statement from the ACLU’s Sharon McGowan for Ms. Schroer. She laid out Schroer’s version of what happened, and why the government’s attempts to justify it don’t make sense. It was to the point and easy to follow.

In its opening, the Library of Congress essentially protested having to go to trial at all, insisting again that it has legal right to fire or refuse to hire transgender people. The Library again asked the judge to throw the case out, and the judge again declined.

The first witness was Diane Schroer herself. Under questioning by McGowan and on a stunningly short cross-examination, her testimony was crisp, clear and logical. No long dissertations here. But no memory failures, artful evasions or government double talk either. She walked us through her military career, full of bureaucratic titles and military operations, and made it all seem pretty understandable.

That career is even more impressive than it seemed from reading the news accounts. How many had successfully graduated from Ranger school with her? 7 out of 325. Had she gotten any honors in the studies that qualified her to be a Ranger, to be a Jumpmaster, to be in the Special Forces? Actually, she made honors in all of them.

Just what was it that she did in the military? She did Special Operations in Haiti, where she ran the northern half of the country for a few years. She ran de-mining operations in southern Africa. She organized the humanitarian aid operation once the U.S. finally responded to the genocide in Rwanda. Finally, in her last position, she was director of a 120-person classified organization charged with tracking and targeting high-threat international terrorist organizations. She briefed the Secretary of Defense and usually the Joint Chiefs every two weeks.

She remained calm and direct as she began to talk about herself. She described what it meant to her to be transgender with disarming simplicity: I didn’t understand why I wasn’t a girl. She talked about deciding to come to grips with that, and devising a plan for transition with her counselor.

As you listen to this careful, calm, capable woman describe her work and her life, you realize this is the kind of person you want on your team - no, running your team - in a crisis. How different the world might be if the people making decisions about responding to terrorism - or running the Justice Department for that matter - thought like she does.

She approached transitioning and the Library of Congress job the same way. In the same call where she was offered the job, she asked for a meeting with Charlotte Preece, who would make the hiring decision. At the meeting a few days later, she explained that she was transgender. She said she thought she could minimize the issue by starting work as Diane, so there would be no on-the-job transition. She’d scheduled facial surgery so that she could make the Library’s planned start date. She had pictures of herself presenting as a woman. She had a counselor ready to come in to explain and answer questions.

On the stand, Preece said she felt set up. But the only thing Preece was set up to do was to make a decision on the merits. Ms. Schroer did not inject gender identity into the hiring process, keeping it focused on background and ability. But once the decision on the merits had been made, she moved immediately to tell Preece, and give her the time and information she needed to stay focused on ability and make the hire work.

That isn’t what happened. On the stand, Charlotte Preece was a vivid reminder that, so very often, the face of wrongdoing turns out to be not evil but ignorance. Under a classic surgical cross-examination by James Esseks, Litigation Director at the ACLU’s LGBT Project, Preece basically confirmed Ms. Schroer’s story. Schroer had the best qualifications and performed best in the interview. Schroer was the best person for the job. Schroer had the job; had it, that is, until she told Preece she was transgender.

Preece confirms she was bewildered when Schroer told her he was becoming Diane. Why would you want to do that? she asked.

It is not so hard to understand Preece’s surprise that this classic man’s man turned out to be a woman. Preece had never met anyone transgender before. But it’s at this point that ignorance turns to wrongdoing. Preece says she worried that Diane wouldn’t get a security clearance, that she’d lose her contacts in the military, that she’d have no credibility working on terrorism for the Library.

She may have felt that. But instead of trying to find out if her worries were justified, she simply gave into them. There’s a legal issue here. The government is not supposed to simply capitulate in the face of prejudice, imagined or real. But the more interesting issue is the human failure. Preece didn’t ask Schroer’s references - almost all of them military and Special Forces veterans - if they’d still respect Schroer as Diane. And it turned out, many of them already knew. Knew and considered Diane, not Dave, at the top of the list when it came to counter-terrorism.

Preece didn’t find out if transitioning by itself created a problem with security clearances. It turns out that it doesn’t, and in fact Diane’s clearance - the highest - has been renewed.

The way Preece assumed what seemed to be her own reaction - loss of respect - on to the military and veterans was almost comic. It turns out that after the job was taken away, Diane created her own consulting business. She did it with the help of, and she is now working with, the very people Preece assumed wouldn’t respect her.

And that - Charlotte Preece’s reaction to the news of Diane Schroer’s transition - is the heart of the case. Is it okay, today, for an employer to refuse to hire somebody who can do the job, and do it well, because the employer doesn’t respect something about their identity that has nothing to do with the job?

In the America of the past, we’d likely have said that Charlotte Preece’s assumptions were enough to justify taking away the job. In the past, failing to live up to society’s expectations about who men are and who women are, would surely have been taken as a sign of instability. But in the America we aspire to be, we won’t be willing to accept stereotypes as shorthand for capacity. Knowing how wrong that kind of shorthand has been, and how much people have been hurt by it, we’ll insist on keeping our eyes on what really counts: ability.

The question posed by what the Library of Congress did to Diane Schroer is just how far we have, if you’ll pardon the expression, transitioned from the America we have been to the America we hope to be.

That question about where we are on the path to a society that truly reflects our ideals is also the question posed by the legal issue the Library keeps coming back to. When the law says you cannot discriminate on the basis of sex, the Library says, it means something certain, genetic and unchangeable. It is okay to discriminate against someone because their gender identity is different from their genetic gender, the Library says, because gender identity isn’t part of sex.

In the careful hands of ACLU lawyer Ken Choe, also representing Ms. Schroer, Dr. Walter Bockting, the incoming head of the World Professional Association for Transgender Health, explained that science doesn’t support the Library. Sex as we understand it today isn’t just chromosomes, it’s anatomy, it’s the physiology of the brain, and it is, above all gender identity. While at one time, we may have thought of sex as one thing, today we understand that sex is made up of many things, and most profoundly, our own sense of who each of us is.

Science doesn’t matter, the Library insists, it’s what Congress was thinking of when it passed the 1964 Civil Rights Act. Everett Dirksen, a reporter said to me in the hall outside Court, wasn’t thinking of Diane Schroer when he helped pass the Civil Rights Act. Probably true, I said as she headed off to meet her cameraman, but James Madison wasn’t thinking of TV when he penned the First Amendment either.

The issue isn’t the way someone who wrote or voted for a law was thinking it would apply; the issue is the concept embodied in the law. What was the idea? The flip answer is that on this point, Congress didn’t have an idea; many of those who voted to put sex into the 1964 Civil Rights Act were hoping it would kill the bill.

But in 1964, as today, it is hard to believe that anyone thought sex was just about chromosomes or even just anatomy. It was about the whole package. The issue in the case is how does that idea apply in a world where the package is different than we thought in 1964, a reflection of more things than we thought, maybe not including a lot of things we thought, maybe more fluid than we thought.

You don’t have to get too deeply into the science of sex and gender to see that what happened here is sex discrimination. The Library may have been willing, in the abstract, to hire either a man or a woman. But it was not willing to hire someone who, identified by parents and doctors at birth as a man, turned out to have the gender identity of a woman. It was, in short, not willing to hire this person because she turned out to be a woman and not the man people thought.

In the America we aspire to be, that has to be sex discrimination.

But as is sometimes the case, the legal lens may not be the best way to look at what happened to Diane Schroer. One of people who testified for her yesterday was Dr. Kalev I. Sepp, Deputy Assistant Secretary of Defense for Special Operations Capabilities.

Sepp gave powerful testimony about how smart, strategic and intellectually focused Schroer was as David and is as Diane. He also told the Court that several years ago, Schroer asked to see him to talk about a big problem. When they met, Schroer explained that he was transgender, and that he was on the path to becoming Diane. Sepp listened, and when Schroer finished, he said, that’s all fine, but what’s the big problem we need to talk about?

These men who have spent their lives in the military, in Special Forces, parachuting in to dirty little wars all over the world, may have been surprised to learn that Dave was Diane. But after getting past the initial surprise, they have had remarkably little trouble seeing that Diane is the same person they’ve relied on, trusted, respected. The Library of Congress, on the other hand, couldn’t see.

Americans, who, like Charlotte Preece, think they’ve never met anyone transgender, might think her reaction was not only understandable, but acceptable. Diane Schroer is the powerful counterargument. How could we let someone this good, this dedicated, with skills we need so badly, slip through our fingers?

Diane Schroer’s story tells us that we can’t afford to live in the America of the past much longer. For our own sake, we have to become the America we aspire to be.

You’ve probably heard that the there have been problems in states that have adopted “Civil Unions” and “Domestic Partnerships.” Here are two real world examples, one an annoyance and the other much more than that.

Item one. Jason Smith and Settimio Pisu have a Connecticut Civil Union. They decided to use H&R Block’s online service to file their taxes. But when they tried to fill out the forms, they got a pop up screen telling them “We don’t support Connecticut Civil Union Returns.” They could, the online service explained, file a return by going into an H&R Block office. And pay four times as much.

We had a little conversation with the “world’s preeminent tax services provider.” From now on, they will support Connecticut Civil Union returns. For the balance of this year, H&R Block changed their website to allow taxpayers in civil unions to prepare their tax returns online at the same cost as for married couples, and have provided a free online support specialist to help folks complete the papers.  $100 coupons or free tax software for 2008 taxes are available at www.taxcut.com/tax_tips/aclu.html for all couples, both from Connecticut and elsewhere, who incurred additional expense.

Item two. We’re working with two guys who moved from New Jersey to Idaho last year.  One, Ralph Martinelli, works for Konica Minolta, which claims to include the partners of employees who have domestic partnerships in its health plan. Martinelli’s partner, Robert Ryan, escaped from the south tower of the World Trade Center on September 11. The dust gave him an asthma problem and the disaster gave him depression. They decided to move to Idaho, hoping the fresh start would help with Robert’s depression.

Konica approved the transfer and they moved to a small town outside Boise. They loved the place. And then Konica let Robert know he was going to be kicked off the health plan. Konica is interpreting its health plan to require employees to register as domestic partners in the state where they live. That wasn’t a problem as long as the couple lived in New Jersey. They had been registered domestic partners there since 2005. But there are no domestic partnership registries in Idaho, meaning there is no way for the couple to comply with the Konica’s interpretation of the plan. So far, we’ve been unable to convince Konica to change course. Understandably, the possibility that something like this could happen never occurred to Ralph and Robert. But as long as some states recognize civil unions or domestic partnerships and some do not, things like this will keep happening.