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!

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.

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.

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.

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.

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.

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?

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.

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.

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.

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