Trans Expulsion in California Raises Many Questions

It has come into the public eye recently that a California school, California Baptist University (CBU), expelled a student because she is transgender. As is usually the case, it may not be a simple as that but that certainly seems to be the case.

Domaine Javier

In early 2011 Domaine Javier, was accepted to CBU's nursing program and was receiving two scholarships. In April 2011 Domaine appeared on an episode of MTV's "True Life" titled, "I'm Passing as Someone I'm Not" (the name of the episodes is an issues in and of itself) and revealed that she is transgender.

Apparently the school discovered Javier on this show while conducting a 'background check'. I am skeptical of this but it seems to be an accepted fact. As a result of this discovery CBU sent Javier a letter  accusing her of fraud because she had identified herself as female when asked her gender on her application. A few months later Javier was expelled.

This situation raises many questions about official questions of gender (ie college applications), religious affiliated institutions, and other private organizations. A suit has been filed by Javier and her attorney claiming that CBU violated Javier's rights under California's Unruh Civil Rights Act.

This can be a tricky argument as previously the California courts have held that admissions offices of schools are not covered by the act. "Although the fact the School is nonprofit is not controlling, this does mean it should not be deemed a business unless it has some significant resemblance to an ordinary for-profit business." Doe v. California Lutheran High School Ass'n, 170 Cal.App.4th 828 (2009). This has been reiterated by Jim Wood, a senior pro bono counsel for the San Francisco-based Transgender Law Center.

Javier's attorney, civil rights attorney Paul Southwick, had a response to the law above. Southwick claims, "California Baptist University is open to the public, regardless of religious belief. CBU also does not have a policy regarding transgender people or gender identity issues....She followed all of CBU’s rules and did not violate any university policies, so she should be treated like any other student.”

Southwick contends that despite the schools religious affiliation it serves a public function and is open to all the public and therefore it is covered under the Unruh Act. “We’re not talking about a private seminary or Bible college. Just because Cal Baptist is a religiously affiliated institution doesn’t give it a right to discriminate,” he says.

Southwick raises an interesting point. Do religious bodies reserve the right to discriminate? And if they do why is that the case? One could say its because of their right to religious freedom but I don't see that as a valid justification. Effectively by saying that you are prioritizing religious right above another right. What makes it 'more important' than a person's right to not be discriminated against? It seems more sensible to say that your right to religious freedom ends where my right to not be discriminated against begins. That way neither is infringing upon the other. Using that line of reasoning though would seem to undermine many positions and practices of religious organizations, which seems to worry many people.

Suzanne Goldberg

Another question that seems to rise from this is the idea of official documents asking for a person's gender. Many applications both school and other official bodies use the terms 'male' and 'female' to describe gender, and only have those two options. This is problematic as it is a prime example of law and official practice not keeping up with the current academic authorities on such topics. You can read more on my view of this here.

In addition to this Suzanne Goldberg, a professor at Columbia Law School who specializes in sexuality and gender law, speculates that this could be a difficult case for the university to defend. She theorizes it could be difficult because the school has no official policies regarding transgender students. She notes it seems to set up a Catch-22 for transgender students. Goldberg states, "There is no indication from these facts that the student intended to misrepresent herself or her identity to the school...In fact, as the complaint points out, to represent herself as male would have also created the appearance of fraud. It's a we-win-you-lose framework."

You can read more here and here.