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!

The Library of Congress is being sued because it offered a key job as terrorism research analyst to Diane Schroer, then rescinded the offer, because Schroer is transgender. On last night’s Countdown on MSNBC, Keith Olbermann exposed the high price of transgender discrimination. Schroer, who was hand picked after 9/11 to run a 120-person operation fighting terrorism, was suddenly considered no longer a “good fit” for a job helping Congress fight terrorism when she notified her future boss that she was in the process of transitioning from male to female.

Yesterday, Matt Coles, Director of the ACLU’s LGBT and AIDS Project, blogged about the first day of Diane’s trial. You can also learn more about Diane’s story from our video profile.

As students head back to school, things are a bit different these days at Ponce de Leon High School in the Florida panhandle. Following an ACLU lawsuit over the summer, anti-gay censorship by school officials is no longer being tolerated, and the school has a new principal.  We’ve told you about this case before, but in case you missed it, this new story from the Associated Press tells a bit more about why a young woman named Heather Gillman decided to stand up for her LGBT classmates and the First Amendment, and how her small town is still a difficult place for gay kids and their friends to grow up:

When a high school senior told her principal that students were taunting her for being a lesbian, he told her homosexuality is wrong, outed her to her parents and ordered her to stay away from children.

He suspended some of her friends who expressed their outrage by wearing gay pride T-shirts and buttons at Ponce de Leon High School, according to court records. And he asked dozens of students whether they were gay or associated with gay students.

The American Civil Liberties Union successfully sued the district on behalf of a girl who protested against Principal David Davis, and a federal judge reprimanded Davis for conducting a "witch hunt" against gays. Davis was demoted, and school employees must now go through sensitivity training.

And despite all that, many in this conservative Panhandle community still wonder what, exactly, Davis did wrong.

Here’s hoping the folks in Ponce de Leon eventually learn that the same Constitution that protects their right to their views about LGBT people guarantees the right of LGBT people to express their point of view, too.

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.

Read more…

Tomorrow Schroer v. Library of Congress, an employment discrimination case filed on behalf of transgender veteran Diane Schroer, proceeds to trial in federal court.

Diane, a former Airborne Ranger, qualified Special Forces officer, retired after 25 years of distinguished service in the Army and began taking steps to transition from male to female shortly thereafter. She was offered a job as a terrorism research analyst at the Library of Congress, but the offer was rescinded when she told her future supervisor that she was undergoing gender transition.

During tomorrow’s proceedings the judge will hear testimony from both Diane and the woman who would have been her supervisor, had the Library of Congress done the right thing and hired the most experienced, highly qualified person for the job.

Stay tuned. We’ll add news and updates about the case to the Get Busy, Get Equal blog over the next few days. In the meantime, click here to watch a video and learn more about Diane’s case.

At the end of July, the New York Civil Liberties Union issued an “e-alert” to our subscribers, asking them to thank the Office of Children & Family Services (OCFS)  Commissioner Gladys Carrion for her leadership in implementing a policy for lesbian, gay, bisexual, transgender and questioning (LGBTQ) youth in juvenile detention and after-care programs.

In essence, the policy requires OCFS staff to be trained in how to work with LGBTQ youth, as well as for the provision of clothing that corresponds with a youth’s gender identity. The policy is a good thing for LGBTQ youth, particularly where a lot of those youth have been rejected, isolated, exploited and worse because of anti-gay and anti-transgender bigotry.

While the NYCLU and many others applaud the OCFS LGBTQ policy as a much-needed advancement, some lawmakers aggressively oppose it. Their hateful rhetoric embodies the very bigotry that is so harmful to LGBTQ youth. That is why the NYCLU decided to ask New Yorkers concerned about spreading tolerance and respect to thank Commissioner Carrion for her leadership on this issue.

If you are a concerned New Yorker, it would make a lot of sense to let Commissioner Carrion know that you support the LGBTQ policy and appreciate her leadership on this matter. Visit the NYCLU’s “Take Action” page , where you can send Commissioner Carrion a thank-you message.

A recent Florida federal court decision in an ACLU case did a lot more than simply make advocates for both reproductive freedom and for lesbian, gay, bisexual, and transgender rights very happy: It signaled that the days when folks could get away with making outlandish anti-LGBT arguments are going, going, and almost gone.

Ruling in favor of students who wanted to start a gay-straight alliance club at Okeechobee High School, a conservative judge found that school officials had violated the federal Equal Access Act, which guarantees the right of students in public schools to form clubs. And he clearly didn’t buy the school’s excuse that it should get off the hook for blocking the GSA because it receives federal funds for its “abstinence-only” program. A gay-straight alliance, the school had argued, is a “sex-based” club — which was news to the students who only wanted to talk about how to cut down on anti-gay bullying at their school and have the occasional pizza party.

In the ruling, the court recognized what those of us who advocate for comprehensive sex education have known for years: In addition to being a colossal failure for heterosexual teens, federally-funded abstinence-only-until-marriage programs by definition exclude LGBT teens. Recipients of this money ($1.5 billion to date and counting) must teach that “a mutually faithful monogamous relationship in the context of marriage is the expected standard of human sexual activity” and that “bearing children out-of-wedlock is likely to have harmful consequences for the child, the child’s parents, and society.” Now take the federal definition of “marriage” that applies to these programs — that marriage is limited to a man and a woman — and combine it with the fact that same-sex couples cannot marry in all but two states, and voila: the result is that abstinence-only-until-marriage programs discriminate against LGBT students.

The judge in this case — again, the kind of judge that no one would call an "activist" — gets this concept. The court dismissed the school district’s nonsensical argument that recognizing a GSA would conflicts with the well-being of students because it conflicts with the school’s abstinence-only program. In fact, the court found just the opposite: It’s not the GSA that would harm the well-being of students but the abstinence-only programs that do so by excluding them.

For example, the court noted that abstinence-only programs “do not provide information of a kind usable by non-heterosexuals to prevent disease.” And it implicitly recognized that LGBT individuals have a right to form intimate relationships and to parent, noting that teaching about the benefits that accrue to children with married parents is of “little use to . . . non-heterosexual students who may aspire to parenting but lack the prospect of a legally sanctioned marriage.” The court concluded by saying that abstinence-only-until-marriage programs are therefore of “limited utility to . . . non-heterosexual students, the well-being of whom must also be considered.”

You’ve got to wish that the lawmakers in Washington, D.C., would get it too — that they’d stop the flow of abstinence-only-until-marriage dollars into discriminatory, ineffective programs. But no, it’s politics as usual in D.C., and while there’s some empty rhetoric about how useless ab-only is, it isn’t accompanied by the political will to actually pull the funding from this costly failed experiment.

Maybe this will be the last we see of this latest, desperate tactic used to bar students from fighting LGBT harassment in schools by forming GSAs. As for the students in the GSA, they’re just excited that they’ll finally be getting the club off the ground when school starts later this month. Pizza, anyone?

On July 31, 2008, Massachusetts Governor Deval Patrick signed a bill repealing a 1913 law that kept many out-of-state lesbian and gay couples from marrying in Massachusetts. The law said you couldn’t marry in Massachusetts if you couldn’t marry in your home state. Back in 2004 when Massachusetts became the first state in the country to allow same-sex couples to marry, then Governor Mitt Romney invoked the law to bar same-sex couples from most of the rest of the country. Thanks to the state legislature and Governor Patrick, that law is no more and same-sex couples are now able to marry in Massachusetts.

Many couples across the country have literally been waiting their entire lives in order to be able to marry. So news that they now choose tie the knot on the Pacific coast at Malibu or in the Berkshire Mountains is especially welcome.

While lesbian and gay couples shouldn’t feel shy about planning weddings in California and Massachusetts where they can celebrate their commitments to each other in front of friends and family, there are some practical realities that couples should consider before picking up a marriage license. We’ve developed FAQs on getting married in California and Massachusetts that answer some of the questions couples are likely encounter.

There’s also the whole question of what you should do about your marriage when you get home. Soon after the California Supreme Court issued its landmark decision saying it was unconstitutional for the state to continue to bar lesbian and gay couples from marrying there, the national LGBT legal and advocacy groups issued a joint statement, “Make Change, Not Lawsuits.” The statement urges people to insist that their marriages are respected. But it also says that bringing lawsuits about them isn’t necessarily a good idea. Now that Massachusetts has opened its doors to lesbian and gay couples from outside the state, that same advice applies for couples who marry in Massachusetts.

We’ve come a long way in the freedom to marry in a relatively short time but we still have a long way to go before marriage for lesbian and gay couples is recognized in all 50 states. A poorly planned lawsuit could set us back years. If you think you’ve been harmed because your California or Massachusetts marriage isn’t recognized in your home state, please talk to us before going to court.

The New York Civil Liberties Union recently filed a lawsuit against Blue Cross & Blue Shield of Western New York on behalf of a married lesbian couple who were denied spousal health care coverage by the insurance company. While the insurance company provides spousal health care coverage for the different-sex spouses of employees at a school district, it refused to do so for the same-sex spouses of school district employees. This means that our clients, who have been together for over ten years and have a one-year-old daughter, must live without the security of having full family health insurance. One of the parents in the family has been categorically excluded from eligibility for the plan.

In our complaint, we argue that the insurance company’s refusal to grant coverage to the lesbian couple constitutes both a breach of the insurance company’s contract with the school district and employees of the district, as well as discrimination under the state’s anti-discrimination law, which protects people from being discriminated against because of their sexual orientation. This case builds upon a case the NYCLU won in February called Martinez v. County of Monroe, which holds that same-sex couples’ valid, out-of-state marriages must be recognized in New York and an employer’s failure to grant equal spousal benefits to a married same-sex couple constitutes unlawful sexual orientation discrimination under the state’s anti-discrimination law.

I’m proud that the NYCLU advocates on behalf of families to ensure they are able to protect themselves with things like spousal health insurance coverage. I’m saddened, however, that we must perform this kind of advocacy. Employer-sponsored health care plans play a crucial role in protecting families. Yet homophobia has blocked this coverage in my state and others. Loving families pay the price. It’s a shame these issues require litigation. Fairness and common sense should be sufficient to ensure all families receive the protection of health insurance.

I hope that, at a minimum, our lawsuit against Blue Cross & Blue Shield of Western New York puts other insurers on notice that homophobia cannot guide their decisions on whether to provide families protections as vital as health care coverage. I also hope that our case and similar cases will help all Americans understand that protecting families—whether gay or straight—makes us all safer and more secure.

There’s been a good development in the case of Jeremiah Johnson, the Peace Corps volunteer whose services were summarily terminated when he tested positive for HIV. Johnson, you might remember, was told he could not finish his service in the Ukraine or anywhere else even though he was asymptomatic.

After pressure from the ACLU, and many current and former volunteers, the Peace Corps administration has had a change of heart, agreeing that it will no longer automatically terminate volunteers with HIV. The Peace Corps has promised to conduct an individual assessment of each volunteer who tests positive to determine the best steps to take to protect the volunteer’s health while also allowing the volunteer to continue his or her service when feasible.

Accountability is the key to the effectiveness of any new policy, so let’s all of us make sure that this is one promise the Peace Corps administration doesn’t forget to keep.

Robert Nakatani is a Senior Strategist with the ACLU’s LGBT & AIDS Project. He was a Peace Corps Volunteer in Sierra Leone from 1968 – 1971.

Visit Get Busy, Get Equal to learn what you can do to fight for LGBT rights.