Transgender Army Employee Wins Landmark Gender Identity Case. An Exclusive Interview with David Scher


The U.S. Office of Special Counsel has announced a landmark determination that the Army discriminated against a transgender employee on the basis of her gender identification. The employee in question is Tamara Lusardi, who transitioned from male to female. The case is part of a broader push by the government and the OSC to protect lesbian, gay, and transgender employees. Attorney David Scher discusses this groundbreaking case.

David Scher

David Scher

Scher notes that this case “draws a line in the sand” about the treatment of someone who has changed gender identity. Ms Lusardi’s problems had to do with the disrespect she got from fellow employees when she made her gender transition. “She was constantly referred to as ‘he,’ even though she was transitioning from male to female.” She was harassed; comments were made about her because she was using a bathroom for women. This case sets a new standard as to how transgender employees need to be treated.

Scher opines that the changes in our society’s views about marriage, for example, and the U.S. Supreme Court’s tacit acceptance of it, are a sign that more changes are coming. Some those changes will surely affect the workplace and the way transgender employees are treated. The Employment Non-Discrimination Act has largely been hung up because of gender identity issues. Scher relates the problem of a client who said he had no sexual orientation and who, because of that, had no claim.

Scher notes that the Army was making efforts to assist Ms. Lusardi. The problems were largely issues of harassment by fellow employees, who were unwilling or unable to accept the new gender identity. Scher points out that the Army’s failing was that it did not stop this conduct. Any solution to such problems will surely entail training of lower level employees to respond appropriately to gender identity issues.

David L. Scher is a principal in The Employment Law Group. Mr. Scher focuses his practice on qui tam, whistleblower retaliation, and discrimination cases in D.C., Maryland, California, and nationally. He represents federal and corporate whistleblowers who have reported their employer’s wrongdoing. Mr. Scher is a frequent news commentator and has appeared on local news WUSA9 (Montgomery county, Maryland), KSBW8 (Salinas, Monterey, Santa Cruz), as well as ABC World News and on Hearst Television, Inc. stations across the country. Additionally, Mr. Scher has been interviewed by Forbes.com, Politico, and the Washington Post on topics such as employment discrimination, whistleblower retaliation, free speech issues and related employment matters. The Legal Broadcast Network is a featured network of the Sequence Media Group.