A federal judge in western Pennsylvania ruled Tuesday against a transgender student who had sued the University of Pittsburgh for discrimination.
According to a decision from District Judge Kim Gibson, a George W. Bush appointee, Seamus Johnston had no claim of discrimination against Pitt for not allowing him to use the men’s locker rooms and bathrooms and eventually expelling him for doing so. “The simple answer is no,” Gibson wrote, alleging that Johnston had not transitioned enough (i.e. undergone sex reassignment surgery) and that there are no protections based on gender identity to be found under Title IX or the Equal Protection Clause of the Fourteenth Amendment.
Johnston started transitioning to living as a man in 2009, beginning a process of updating his gender on his identity records and eventually undergoing hormone therapy. At the same time, he began attending the University of Pittsburgh at Johnstown (UPJ) on a full scholarship. Despite listing “female” on his application form — as he had not yet begun changing his documentation — he identified consistently as a man on campus. In spring of 2011, he enrolled in a men’s weight training class and used the men’s locker room without issue. He took the same class again that fall, but was informed by Jonathan Wescott, UPJ’s Vice President of Student Affairs, that he would only be allowed to use the men’s locker room “if his student records were updated from female to male,” a process the university insisted required a court order or birth certificate.
In Pennsylvania, however, a revised birth certificate generally requires confirmation from a physician that reassignment surgery has been performed. Because Johnston had only just begun hormone therapy, he didn’t even qualify to undergo surgery, because transgender individuals are expected to undergo a full year of hormone therapy before genital surgery. This is besides the fact that not all trans people want such surgery, in part because they sacrifice their reproductive ability in the process and many also cannot afford it. The World Health Organization has condemned any legal requirements for transgender people that demand surgery.
In November of 2011, Johnston was issued his first citation for disorderly conduct simply for using the men’s locker room. Then he received a second. Then he was barred from the Sports Center. Then disciplinary charges were filed against him. Then he was arrested for being in the locker room and issued another disorderly conduct citation. In December, he was found guilty of three of these charges, barred from any male locker room or restroom on campus, ordered into counseling, and given disciplinary probation for approximately one year. But Johnston still had to pee. By the end of the month, he had been suspended and barred from all UPJ property. In January, he was expelled, losing his full scholarship. He was also criminally charged with indecent exposure, criminal trespass, and disorderly conduct; he would later plead guilty to reduced charges — the indecent exposure charge was dropped — and was sentenced with six months probation and a fine of approximately $600.
According to Gibson, UPJ did nothing wrong. Johnston had not “undergone any kind of sex reassignment surgery” and the university had a justified policy to “ensure the privacy of its students to disrobe and shower outside of the presence of members of the opposite sex.” Gibson insisted that Johnston’s sex assignment at birth was all that mattered, essentially erasing his gender identity. “While Plaintiff might identify his gender as male, his birth sex is female,” Gibson wrote. “It is this fact… that is fatal to Plaintiff’s sex discrimination claim. Regardless of how gender and gender identity are defined, the law recognizes certain distinctions between male and female on the basis of birth sex. Thus, even though Plaintiff is a transgender male, his sex is female.” Gibson did not acknowledge the Department of Education’s guidance issued last April making it clear that transgender and gender nonconforming students are protected from discrimination under Title IX.
The University of Pittsburgh did provide a reaction to this decision, but first, here are — verbatim — the questions ThinkProgress asked Pitt to respond to:
- What is the university’s response to the court decision?
- Is the university’s 2012 policy blocking transgender bathroom access still in place?
- What is the university’s justification for this policy?
- How is the policy not a violation of the university’s own Nondiscrimination, Equal Opportunity, and Affirmative Action policy that includes gender identity and expression as protected classes?
- Is the university concerned that this policy violates guidance issued recently by the Department of Education stating that transgender students are protected from discrimination based on their gender identity under Title IX?
John Fedele, Senior Associate Director of News for Pitt, provided the following response from the university: “Because it is never our intent to violate anyone’s rights, we are pleased with Judge Gibson’s decision.” That single sentence was the university’s full response. In other words, Pitt is not concerned that it discriminated against Johnston in any fashion, nor that it might be continuing to do the same to the other transgender students, staff, and faculty that it claims to protect. Because it won the case, the university seems to feel affirmed that it did nothing wrong.
The Transgender Law Center, which represents Johnston in this case, was disheartened by the ruling. Legal Director Ilona Turner told ThinkProgress, “We were surprised and disappointed with the ruling. We respectfully disagree with the judge’s conclusion, which appears to overlook the great weight of recent authority that confirms that transgender people are protected by the Constitution’s Equal Protection Clause and antidiscrimination laws like Title IX and Title VII. We are currently evaluating the next steps.”
A spokesperson from the Education Department told ThinkProgress on background Thursday evening that the federal government was not involved in this litigation and the U.S. Department of Education has no comment. Information about the Department’s position on the rights of transgender students under Title IX and the Equal Protection Clause can be found in the Statement of Interest of the United States in the case of Tooley v. Van Buren Public Schools.