In a ruling described by one expert in gender law as “enormously significant,” a Superior Court Judge in Riverside County, Calif., has allowed DWT’s pro bono client Domaine Javier to proceed with her lawsuit against California Baptist University, which revoked her admission to the school after discovering her appearance on a TV show discussing the stigma of being transgender.
DWT associate Paul Southwick is spearheading the suit on Ms. Javier’s behalf. He and partner Timothy Volpert are working in collaboration with Clifford Davidson of Sussman Shank LLP.
Ms. Javier was born in the Philippines and lived there until she was 16. Though born male, she has viewed herself as female for as long as she can remember, and has presented herself as female since she was a child. Once in the U.S., she attended Riverside City College, where she was crowned Homecoming Queen for the years 2010-2011. She also sang alto in the choir of her Catholic church.
In 2011, she applied to transfer to California Baptist University (CBU), with plans to study nursing. She was accepted “with honors at entrance” for the fall semester, and was awarded academic scholarship funds. Following an audition, she was also accepted into the CBU woman’s chorus, and won additional scholarship money for her singing skills.
But several weeks before the school year was to begin, Ms. Javier received a letter from the CBU Dean of Students. He told her information had been brought to CBU’s attention indicating she had violated the school’s policies against “committing or attempting to engage in fraud, or concealing identity.” Her admission to the university had been suspended, the dean informed her, and she was banned from the campus.
The dean invited Ms. Javier to schedule a meeting to discuss the matter. Ms. Javier was told she could not bring anyone else to the meeting, nor take notes. At the meeting, the dean told Ms. Javier that her fraud consisted in having checked the box that said “Female” in the section of the university’s student application that asked for Gender. At this same meeting, the dean mentioned an episode of MTV’s “True Life,” on which Ms. Javier had appeared, discussing her transgender status.
Ms. Javier acknowledged being transgender and said selecting female for her gender on the application was not fraud, but consistent with her gender identity.
A few weeks later, by a second letter, Ms. Javier was expelled. She appealed to the university’s Student Services Committee but was denied. The ruling meant she was prohibited from enrolling—or even taking courses online; though she was granted permission to attend “public events” held on campus.
Southwick, who is in DWT’s Portland office, offered to help file a lawsuit on Ms. Javier’s behalf in California’s Riverside County Superior Court. The complaint states that the university breached its contract with Ms. Javier, and also violated California’s Unruh Civil Rights Act, which prohibits businesses from discriminating based on gender identity.
The university immediately sought to dismiss the suit, arguing that, as a religious institution, it was not bound by the restrictions of the Unruh Act.
But Southwick argued otherwise. He noted that the university, while private and religious, “competes in the public marketplace to attract students regardless of their religious affiliation.” He observed that the university offers a broad curriculum in secular subjects and that the “economic benefits” conferred on students through these services made the university a “business establishment” for the purposes of the Act. He also pointed out that CBU was a participant in a government backed, tax-free bond-financing program, through which “it has raised over $100 million…and is seeking an additional $155 million, to construct educational facilities to be used exclusively in support of secular education.”
In a ruling in May, Judge Matthew C. Perantoni allowed Ms. Javier’s case to go forward.
“This case stands for the proposition that a religious institution that makes services available to the public and receives public funds can’t discriminate based on religious views,” says Southwick, who is active in the national effort to make Christian universities more accepting of LGBT students. “When CBU chose to suspend, exclude, and expel Ms. Javier because of her gender identity, it violated the Unruh Civil Rights Act and must pay her damages for the injuries it caused her.”
The case has received widespread attention. In an article in the Los Angeles Daily Journal, Suzanne Goldberg, director of the Center for Gender and Sexuality Law at Columbia University’s law school, called the judge’s ruling “enormously significant.”
Complete Fall 2013 Pro Bono Report