Seamus Johnston. | FACEBOOK.COM
Just one day before the federal Equal Employment Opportunity Commission ruled that the Army unlawfully discriminated against a transgender woman by denying her the right to use women’s facilities, a federal district court in Pennsylvania rejected a discrimination lawsuit by a transgender man expelled from the University of Pittsburgh at Johnstown for insisting on using men’s restroom and locker room facilities.
US District Judge Kim R. Gibson reached an opposite conclusion from the EEOC in his March 31 decision, finding that transgender legal precedents under Title VII of the 1964 Civil Rights Act –– which have construed gender identity stereotyping as a form of prohibited sex discrimination –– did not apply to this lawsuit, which was brought under Title IX of the Higher Education Act and the US Constitution’s 14th Amendment equal protection clause.
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. By May 2009, he was living in accordance with his male gender identity and a year later received a psychotherapist’s diagnosis of gender identity disorder and soon began hormone treatments. Between 2009 and 2013, Johnston amended his legal name, his driver’s license, his passport, and his Social Security records. He did not, however, obtain a new birth certificate. Judge Gibson’s opinion does not say whether Johnston would have been able to obtain a new birth certificate without evidence of sex-reassignment surgery –– which he apparently had not undergone –– in the jurisdiction where he was born.
Johnstown campus prevails in federal court over its hardball tactics against athlete’s use of male locker room
Johnston’s March 2009 college application to Pittsburgh, coming before the start of his gender transition, listed his identity as “female.” By the time he arrived on campus that fall, however, he was living as a male and presented that way throughout his five semesters at the university. In August 2011, he asked the school to change the gender marker in his student records, but that request was declined since he lacked the required updated birth certificate.
During his time at Pittsburgh, Johnston consistently used men’s restrooms on campus –– and might have faced arrest if he had instead used women’s rooms since he was living as a male. What he never anticipated was that he would be arrested for using the men’s restrooms.
The trigger for the problems he encountered was his enrollment in a men’s weight training class, for which he used the men’s locker room throughout the spring 2011 semester. When the administration learned he was doing so, he was summoned to a September meeting and told he could no longer use the men’s locker room. He agreed to use a unisex locker room, and was told that he could resume using the men’s locker room if his student records were “updated from female to male” –– after presenting either a changed birth certificate or a court order.
Johnston filed a complaint with the campus president, Dr. Jem Spectar, who backed up his administrators. Frustrated in resolving the issue, Johnston resumed use of male facilities and was arrested by campus police and barred from the sports center. Though he was now facing disciplinary charges, he persisted in using men’s restrooms on campus and, in early 2012, was expelled. A University Appeals Board ruled against him and, facing criminal charges from the campus police, Johnston pled guilty on trespass and disorderly conduct charges.
According to Johnston, after he was expelled, the university retaliated against him by giving his name to the FBI in connection with an investigation of a campus bombing threat.
Johnston filed a federal lawsuit, representing himself, which alleged state law claims based on sex discrimination (Pennsylvania offers no gender identity protections) as well as the equal protection and Title IX federal claims. The 11th Circuit Court of Appeals, whose rulings are binding in Florida, Georgia, and Alabama, has interpreted the equal protection clause to bar gender identity discrimination by a public employer, and Title IX bans sex discrimination by colleges and universities receiving federal funding. Federal court across the nation and some administrative agencies have recognized gender identity discrimination as a form of sex discrimination.
Unfortunately for Johnston, however, neither the Supreme Court nor the Third Circuit Court of Appeals, whose rulings are binding on federal courts in Pennsylvania, has ruled on gender identity claims. Gibson, then, had no clear precedents to rely on and he resolved the question facing him against Johnston.
“While this case arises out of a climate of changing legal and social perceptions related to sex and gender,” Gibson wrote, “the question presented is relatively narrow and the applicable legal principles are well-settled.”
The university, Gibson found, has 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. Johnston does not allege that he either completed sex-reassignment surgery or obtained a new birth certificate, the judge noted.
Gibson acknowledged the growing body of federal court rulings in employment discrimination cases, but insisted access to sex-segregated facilities raised different issues. Johnston was not barred from attending the university, only from using male locker rooms and restrooms when the issue came to the administration’s attention in early 2011.
Gibson’s reasoning and conclusions were contradicted the next day by the EEOC’s ruling in Tamara Lusardi’s case against the Army. There, the EEOC concluded that the Civil Rights Act’s Title VII sex discrimination provisions entitled a transgender woman who underwent treatment and legally changed her name to use women’s facilities, regardless of whether she had also undergone sex-reassignment surgery. The EEOC said that it was not up to the employer to impose its own surgical requirement in order to recognize a person’s gender identity.
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 Gibson concluded the opposite.
This tension in the interpretation of laws and 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 federal nondiscrimination law that includes gender identity. Neither is imminent, unfortunately. 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 –– though likely years off.
Johnston might try to appeal to the Third Circuit, but that court has to date not taken a particularly expansive view of the sex discrimination provisions of the federal Higher Education Act.