Sharon McGowan

In the post-trial brief she signed on August 27, 2008, Sharon McGowan asked Judge James Robertson to look at the hiring official’s own account. Charlotte Preece had explained what troubled her about employing Diane Schroer. McGowan and her colleagues argued that those admissions supplied direct evidence of sex stereotyping; their client did not need to find another employee against whom to measure the discrimination.

The Library’s proposed comparison posed a further problem. If employers could defend a decision by showing that they would penalize gender nonconformity in both men and women, the lawyers argued, the law would end up “rewarding the employers that enforce the most sex stereotyped workplaces.” They also had an answer on the facts: the Library had chosen a lower-scoring replacement whose conformity to its expectations raised none of the same concerns.

McGowan led the ACLU team with Kenneth Choe, James Esseks and Arthur Spitzer. Their case began with the Library’s favorable assessment of Schroer, before it knew about her transition. Degrees, experience, references and an active security clearance had secured the offer. The trial would test the five explanations the Library gave for reversing it.

The Candidate They Had Chosen

In August 2004, the Congressional Research Service advertised for a Specialist in Terrorism and International Crime. The analyst would advise members and committees of Congress, drawing on national-security knowledge, operational judgment and dependable sources.

Schroer brought twenty-five years of military service, graduate degrees in history and international relations, and experience directing a 120-person classified counterterrorism organization. She had continuously held a Top Secret, Sensitive Compartmented Information clearance since 1987. Of eighteen candidates interviewed, she earned the highest score. After examining writing samples and updated references, the three-member selection committee unanimously recommended her.

Preece called in mid-December to offer the job. Schroer asked whether the Library could match her private-sector salary; once Preece confirmed that it could, she accepted. The hiring paperwork began. On December 20, Preece introduced her to staff as the incoming hire and showed her the office. Over lunch, she explained why Schroer stood out: operational experience, creative answers and contacts in the military and defense industries.

Schroer had arranged the lunch to discuss how she would begin work. She intended to present as a woman from her first day and believed that telling Preece beforehand would be less disruptive than changing her presentation after joining the office. She explained that she was transgender, described the timing of her transition and answered questions about anticipated medical care. She addressed her start date and existing clearance, mentioning acquaintances who had retained federal clearances while transitioning.

Preece returned to the Library and left her favorable hiring memorandum unfinished. She contacted personnel-security officer Cynthia Wilkins, but supplied neither the full identifying information nor the details needed to retrieve Schroer’s clearance history from the federal system. At nine the next morning, Preece told senior colleagues that Schroer had been her first choice and no longer was. They began discussing a replacement before examining whether any individualized security obstacle existed.

The File Behind the Clearance Concern

Preece eventually identified five concerns: clearance timing, trustworthiness, distraction during transition, credibility with members of Congress and the reliability of military contacts. The first draft of her explanation tied the reversal to transition, a possible clearance delay, contacts and attention to the job. After a meeting with the General Counsel’s office, she circulated a shorter version: the candidate was no longer a good fit for Congress’s immediate needs.

The position required a clearance, and the Library said it needed to fill the vacancy promptly. Preece testified that a fresh investigation might delay Schroer’s start for as long as a year. Yet the Library had procedures for recognizing an existing clearance. At trial, its security director, Kenneth Lopez, described the conditions for reciprocity: a sufficiently recent investigation of adequate scope, without a significant break in service. New information required evaluation; it did not automatically require starting over.

Other procedures could address a specific concern. Health Services could assess a medical question, and the organization holding the clearance could confirm what it knew. If reciprocity was unavailable, a waiver could allow a new employee to work conditionally while an investigation proceeded.

Wilkins could have opened Schroer’s complete federal file. She did not. The Library contacted neither the current clearance holder nor Health Services and gathered no individualized facts before withdrawing the offer. Preece’s prediction of a year’s delay therefore rested on no examination of the clearance Schroer already held.

The trial record also tested the claimed urgency against the Library’s own practice. The previous terrorism specialist had worked for six months before receiving clearance; the lower-scoring replacement worked for several months before his became final. Robertson found the clearance explanation pretextual. The Library had invoked a process whose available routes it had not investigated.

Three Pretexts and Two Discriminatory Reasons

Trustworthiness and distraction failed as explanations too. Schroer had disclosed her transition before employment began, invited questions and explained how recovery and any later procedure could fit around the job. During the call rescinding the offer, Preece thanked her for her honesty. The Library conceded at trial that Schroer had no condition affecting her stability, judgment, reliability or ability to protect classified information.

The people who could answer practical questions had not been asked. Preece contacted neither Schroer’s employer about her focus and reliability nor the therapist she had offered as a source. Every reference knew about the transition, but none was asked whether professional cooperation would continue. Robertson found the trustworthiness and distraction concerns pretextual.

The concerns about Congress and military contacts worked differently. Preece assumed that legislators would find Schroer’s military background incompatible with her presentation as a woman, and that contacts might withdraw cooperation. The trial testimony connected her reaction to expectations about masculinity, professional appearance and Special Forces experience. The Library was treating presumed prejudice among the people an analyst would work with as a reason to reject the analyst.

Robertson held those two explanations facially discriminatory. An employer remains responsible when it acts on the real or presumed biases of others. Preece’s testimony about the replacement brought the point back to the hiring decision: although he had scored lower, she considered him less complicated to employ because he was not transitioning.

The Evidence Changes the Legal Question

The ACLU had filed Schroer v. Billington on June 2, 2005, under Title VII of the Civil Rights Act of 1964. In March 2006, Robertson denied dismissal because discrimination connected to transition could constitute treatment because of sex. The case proceeded toward a factual record, and the sex-stereotyping theory developed beyond its initial pleading.

A one-page order on July 3, 2008, denied summary judgment because material facts remained disputed. The four-day bench trial in August brought Preece, security officials, experts, references, contemporaneous messages and the hiring chronology before Robertson. By the time McGowan signed the post-trial brief, the lawyers could point to admissions about what had influenced the decision.

They distinguished a case about a generally applicable grooming policy from this refusal to hire. Schroer was relying on direct evidence that the decisionmaker’s expectations about sex had affected her choice. The Library’s own recommendation, offer and reversal also made the factual comparison unusually close: the applicant’s qualifications had not changed.

The Library argued that earlier decisions placed transgender status outside Title VII. It also pointed to proposed legislation addressing gender identity as evidence that the existing statute did not reach the claim. McGowan’s team sought judgment through two independent routes: the prohibition on sex stereotyping and the statute’s words, because of sex.

The first route followed Price Waterhouse v. Hopkins, which addressed employment decisions shaped by expectations about how men and women should look or behave. Preece’s difficulty reconciling Special Forces service with a woman, and her testimony about the response she expected from others, supplied evidence of those expectations in the actual hiring decision.

The second route concerned transition itself. Robertson used the example of an employee fired for converting from Christianity to Judaism. An employer could not avoid a religious-discrimination claim by saying it objected only to converts. A decision made because of a change in the characteristic named by the statute still depended on that characteristic.

The parties’ two experts gave different scientific accounts of sex and gender identity. Robertson described both presentations as impressive but found it unnecessary to resolve their disagreement. The employment evidence supported judgment: sex stereotypes and Schroer’s transition had caused the refusal to hire.

Nor did unenacted legislation settle the statute’s meaning. McGowan and her colleagues argued that Congress’s inaction could support several explanations, including the view that existing law already covered the conduct. The court followed the statutory text and Supreme Court decisions recognizing that broad language can reach applications lawmakers did not anticipate.

A Judgment That Became Final

On September 19, 2008, Robertson entered judgment for Schroer and scheduled a remedial phase. On April 28, 2009, he awarded approximately $491,190: $183,653 in back pay and benefits, $300,000 for emotional pain and suffering, and $7,537.80 for other out-of-pocket losses. The emotional-distress award reached the statutory maximum. The relief followed a bench trial.

The Justice Department let the June 30 appeal deadline expire, making the judgment final between Schroer and the Library. McGowan welcomed the decision as an end to years of litigation and a painful chapter in her client’s life.

In 2020, Bostock v. Clayton County supplied the nationwide Supreme Court rule: an employer that discharges a person for being gay or transgender necessarily uses sex as a but-for cause, even if other motives contribute. Schroer’s earlier district-court case had examined that relationship through one hiring decision, with the accepted offer and subsequent reversal establishing the sequence.

Bostock left bathrooms, locker rooms, religious-liberty defenses and other policies to distinct legal questions. In February 2026, an EEOC appellate decision addressed intimate spaces within the federal administrative process. It applied to federal agencies, excluded private employers and bound no federal court. The EEOC’s public guidance, marked under review in September 2026, continued to identify transgender-status discrimination in hiring and firing as sex discrimination.

The Work After Schroer

On July 8, 2026, the Human Rights Campaign announced McGowan’s appointment as senior vice president of policy and litigation. Her work had by then taken her from individual representation into the institutions that enforce civil-rights law.

At the Justice Department, she became principal deputy chief of the Civil Rights Division’s Appellate Section, supervising attorneys and advising department leadership, including the Solicitor General. Her career also included a senior role at the Office of Personnel Management. At Lambda Legal, she led litigation and policy teams as chief strategy officer and legal director; in private practice at Katz Banks Kumin, she represented people facing workplace harassment and discrimination.

When Public Justice announced her selection as chief executive in April 2024, McGowan spoke about extending access to courts. She wanted to work with its members to “help those who have been locked out of our country’s courts.”