The federal court for the Western District of Pennsylvania rejected a discrimination lawsuit by a transgender man who was expelled from the University of Pittsburgh at Johnstown in January 2012 for insisting on using men’s restroom and locker room facilities. Just one day before the federal Equal Employment Opportunity Commission ruled that the Army had unlawfully discriminated against a transgender woman by denying her the right to use women’s facilities, U.S. District Judge Kim R. Gibson reached an opposite conclusion in his March 31 decision, finding that transgender legal precedents under Title VII of the Civil Rights Act did not apply to this lawsuit, which was brought under Title IX of the Higher Education Act and the Equal Protection Clause of the 14th Amendment of the U.S. Constitution.
The plaintiff, Seamus Johnston, was identified female at birth but by age nine had begun to self-identify as a boy, coming out to his parents. He began living in accordance with his male gender identity beginning in May 2009, and a year later obtained counseling, being diagnosed by a psychotherapist as having a gender identity disorder. A year later, he began hormone treatments. In 2009 Johnston began the process of amending identification documents to reflect his male identity, and he obtained a common law name change in 2010. His driver’s license was changed to his new name and gender identification in 2011, and he registered with the Selective Service system as a man in July 2011. His amended passport was issued in February 2012, and he amended the gender marker in his Social Security records in November 2013. However, he did not obtain a new birth certificate.
When he applied to the University of Pittsburgh at Johnstown (UPJ) in March 2009, he listed “female” on his application form, as he had not yet been diagnosed or begun hormone treatments. He attended UPJ as an undergraduate for five semesters until his expulsion. Although he had applied as female, upon arrival for his first semester in August 2009 he “consistently lived as a male,” he alleged in his lawsuit. In August 2011, after his sophomore year, he asked the school to change the gender marker in his school records. This request was not acted upon because he could not meet the school’s requirement that he present a birth certificate in his legal name identifying him as male. The court’s opinion does not specify where he was born, but it seems likely that it was in a jurisdiction that won’t issue a new birth certificate without evidence of sex reassignment surgery, and Johnston had apparently not undergone that procedure. He did present the school with a notarized affidavit about his name change, which led UPJ to change the name on his student records in the fall of 2011.
Johnston consistently used the men’s restrooms on campus. Since he was living as a man, to do otherwise would be to risk a disorderly conduct arrest. What he didn’t anticipate, however, was that he would be arrested for using the men’s restrooms. What seems to have triggered this development was his enrollment in a men’s weight training class, attended only by men, and his use of the men’s locker room throughout the spring 2011 semester. This came to the attention of the administration, and he was summoned to a meeting on September 19, 2011, after he enrolled in the class again for the fall semester. He was told he could no longer use the men’s locker room. He agreed to use a unisex locker room in the Sports Center, and was told that he could resume using the men’s locker room if his student records were “updated from female to male.” For that, however, he would have to get either a court order or a changed birth certificate.
Johnston filed a complaint with UPJ’s president, whose response was the same: get a court order or a new birth certificate. Doing neither, Johnston resumed using the men’s restroom, and was arrested by campus police. He was barred from the Sports Center, and disciplinary charges were brought against him. But he persisted in using the men’s restroom, and was ultimately barred from campus, suspended, and expelled in a proceeding culminating in a hearing before a student disciplinary panel. A University Appeals Board ruled against him. He lost his scholarship, and the Campus Police pressed criminal charges, leading to a guilty plea on trespass and disorderly conduct charges. After he was expelled, he claims the University retaliated against him by giving his name to the FBI in connection with an investigation of a bombing threat received by the University.
He filed a federal lawsuit representing himself, alleging violations of the Equal Protection Clause of the 14th Amendment and Title IX of the Higher Education Act as well as various state laws. Pennsylvania state law does not prohibit discrimination because of gender identity, so his state law claims also asserted sex discrimination. The Equal Protection Clause has been interpreted by the 11th Circuit Court of Appeals to prohibit gender identity discrimination by a public employer. Title IX bans sex discrimination by colleges and universities that receive federal funding.
Johnston sought to build on a growing body of court and administrative decisions in other parts of the country recognizing gender identity discrimination as a form of sex discrimination. Most of those decisions are relatively recent, and as noted above, an important recent breakthrough decision by the EEOC on the restroom access issue was issued the day after Judge Gibson ruled against Johnston in this case.
Unfortunately for Johnston, the Supreme Court has yet to rule on a gender identity discrimination claim, and neither has the U.S. Court of Appeals for the 3rd Circuit, whose rulings bind the federal courts in Pennsylvania. Thus, Judge Gibson was facing a question of first impression in terms of binding precedent, and he resolved the question against Johnston.
“At the outset,” wrote Gibson, “the Court notes that society’s view of gender, gender identity, sex, and sexual orientation has significantly evolved in recent years. Likewise, the Court is mindful that the legal landscape is transforming as it relates to gender identity, sexual orientation, and similar issues, especially in the context of providing expanded legal rights. Within the context of these expanding rights and protections arise the profound question of self-identity, as exemplified by this case. But, while this case arises out of a climate of changing legal and social perceptions related to sex and gender, the question presented is relatively narrow and the applicable legal principles are well-settled.”
Finding that the University had a legitimate interest in protecting the “privacy” of other students who did not want to share sex-segregated restroom and locker room facilities with persons of the other sex, Gibson concluded that, whether ruling under the Equal Protection Clause or Title IX, the University had a sufficient justification for excluding Johnston from facilities reserved for men. His conclusion was bolstered by 3rd Circuit rulings from early in the history of Title IX upholding sex-segregated educational facilities, and he emphasized Johnston’s failure to allege that he had completed sex-reassignment surgery or obtained a new birth certificate indicating his sex as male. Clearly, the University had stated that it would allow Johnston to use male facilities if he met the University’s requirement of a completed surgical gender transition with such documentation.
While acknowledging the growing body of lower federal court rulings in employment discrimination cases, Gibson insisted that employment rights were different from the issues raised in this case of access to educational facilities, where the University could be legitimately concerned about the safety and privacy interests of other students. UPJ allowed Johnston to attend classes and use campus facilities for more than two years presenting himself as male, even though he applied as female. It was when Johnston pushed things forward by enrolling in the men’s weight training class and using the men’s locker room that alarm bells went off about the privacy interests of other students, and he was not barred from participating in that class during the Fall 2011 semester, just from using men’s facilities, with the compromise offer of a gender-neutral restroom that was usually used by referees.
Having decided there was no federal claim in the case, Judge Gibson exercised his discretion to refuse to entertain Johnston’s state law claims.
The retaliation claim failed upon Gibson’s conclusion that Johnston’s sex discrimination claims were not viable.
Gibson’s reasoning and conclusions were contradicted the next day by the EEOC’s ruling in Tamara Lusardi’s case against the Army. The EEOC concluded that under Title VII, a person identified as male at birth who was diagnosed with gender identity disorder, undertook transitional treatment (hormones), and was presenting as a woman with a legal name change, was entitled to be treated as a woman with access to women’s facilities, regardless whether she submitted to surgical procedures. The EEOC said that it was not up to the employer to impose its own surgical requirement in order to recognize a person’s desired gender identity. While Judge Gibson emphasized the privacy interests of students and the University’s overriding concern with the well-being of students, one could advance similar arguments in an employment setting. In fact, the Army argued in Lusardi’s case that restricting her from using the women’s restroom was largely motivated by concern over the privacy interests of female co-workers.
In both cases, the defendant had offered a gender-neutral restroom facility for the plaintiff’s use. The EEOC said the Army’s insistence on this was unlawful sex discrimination, but Judge Gibson concluded the opposite. This tension in the interpretation of laws or constitutional provisions dealing with sex discrimination in gender identity cases awaits resolution at a higher level, either by the Supreme Court or by enactment of a broad non-discrimination law by Congress that includes gender identity. Neither resolution seems imminent, as the state of Georgia did not seek Supreme Court review of the 11th Circuit case, and there seems little interest in Congress in amending federal sex discrimination laws to encompass gender identity. Passage of the Employment Non-Discrimination Act would solidify Lusardi’s victory at the EEOC, but would do nothing to affect Johnston’s case, which requires an amendment to Title IX. The EEOC has undertaken a litigation effort to establish appellate precedents in more circuits finding that gender identity discrimination is sex discrimination, perhaps culminating in a Supreme Court ruling, but a final resolution along those lines is probably years off. Of course, Johnston might try to appeal to the 3rd Circuit, but that court has not taken a particularly expansive view of the sex discrimination provisions in Title IX.Tags: gender identity bathroom issues, gender identity discrimination, gender identity restroom issues, Seamus Johnston, Title IX gender identity discrimination, Title IX sex discrimination, transgender rights, U.S. District Judge Kim G. Gibson, University of Pittsburgh at Johnstown