US Court Refuses to Dismiss Transgender Professor’s Sex Bias Suit

Dr. Rachel Tudor.

Dr. Rachel Tudor.

A federal district court judge has denied a motion to dismiss a sex discrimination claim filed by the Justice Department on behalf of a transgender woman against Southeastern Oklahoma State University, a public institution, alleging that she suffered discriminatory treatment and a denial of tenure after she announced her intent to transition.

Judge Robin J. Cauthron of the US Western District of Oklahoma ruled on July 10 that allowing such an employment claim under Title VII of the 1964 Civil Rights Act is consistent with a growing body of judicial precedents, some sparked by an ongoing project by federal civil rights officials.

Dr. Rachel Tudor, the faculty member who filed a discrimination complaint with the Equal Employment Opportunity Commission, intervened in the lawsuit as the co-plaintiff with the Justice Department. Tudor is represented by Brittany Novotny of Oklahoma City and Ezra I. Young and Jillian T. Weiss of the Law Office of Jillian T. Weiss PC of Tuxedo Park, New York.

In Oklahoma university case, Justice Department continues effort to establish precedents nationwide

Judge Cauthron rejected the university’s claim Tudor’s complaint to the EEOC was insufficient to meet the requirement of exhausting administrative remedies before going to court, finding that her claim was detailed enough to put the defendant on notice that she was asserting a hostile work environment and discrimination claim.

The court also rejected the university’s argument that Tudor is not a member of a “protected group” under Title VII, which does not specifically mention gender identity. Cauthron noted 10th Circuit precedent stating that “like all other employees, [Title VII] protection extends to transsexual employees only if they are discriminated against because they are male or because they are female.”

The judge wrote, “Here, it is clear that Defendants’ actions as alleged by Dr. Tudor occurred because she was female, yet Defendants regarded her as male. Thus, the actions Dr. Tudor alleges Defendants took against her were based upon their dislike of her presented gender.”

The university’s reading of Tudor’s factual allegations, the court found, was unduly narrow in not accounting for her claim that “she was subjected to unwelcome harassment based on the protected characteristic and that the harassment by Defendants’ employees was sufficiently severe or pervasive to alter a term, condition, or privilege of her employment and thereby create an abusive work environment.”

Among Tudor’s allegations is that a university official responded to news of her gender transition by urging her discharge, stating that transsexuality offended his religious beliefs. A public university administrator basing personnel decisions on religious beliefs raises serious First Amendment Establishment Clause concerns.

Tudor also charges that she suffered discrimination regarding insurance coverage for gender transition expenses, in the denial of her tenure application, and concerning restroom access.

This lawsuit is one of several the Justice Department has filed in federal district courts around the country on behalf of transgender complainants seeking to vindicate sex discrimination claims under Title VII. Another such complaint was filed by the government against a Minnesota-based printing and financial services company, Deluxe Financial Services, in mid-June. That case, based on a complaint filed with the EEOC by Britney Austin, a transgender woman, also focuses on restroom access, as well as name-calling by co-workers and refusals to use the correct pronoun in referring to the complainant.

The Obama administration’s strategy is to establish judicial precedents in many different courts holding that discrimination against transgender individuals because of their gender identity or expression is prohibited sex discrimination, before a case presenting the issue finally percolates up to the Supreme Court.