In our 2013 Diversity & Inclusion Report, we highlighted the efforts of our Portland associate, Paul Southwick, to promote greater LGBT acceptance at Christian universities, including his own alma mater. In addition to those ongoing efforts, Southwick has taken on pro bono representation of a student in Riverside County, Calif., whose admission to California Baptist University was revoked after school officials discovered she was transgender. The suit is currently pending.
In recognition of his work on behalf of the LGBT community, and his achievements as a litigator, the National LGBT Bar Association named him to its 2013 list of the country’s 40 Best LGBT Lawyers Under 40. Southwick was the only honoree from Oregon.
Southwick’s California client, Domaine Javier, was born in the Philippines and lived there until she was 19. Though assigned the male sex at birth, she has viewed herself as female for as long as she can remember, and has presented herself as female since she was a child. After arriving 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 women’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, who told her that information had been brought to his attention indicating she had violated the school’s policies against “committing or attempting to engage in fraud, or concealing identity.”
At a meeting with the dean, Ms. Javier was told her fraud consisted in having checked the box that said “female” in the section of the university’s student application asking for gender. He 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, 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 offered to help file a lawsuit on her behalf in 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’s complaint contends that the university, while private and religious, “competes in the public marketplace to attract students regardless of their religious affiliation.” He argues that the “economic benefits” conferred on students through the university’s broad curriculum of secular subjects make CBU a “business establishment” for the purposes of the Act. He also points out that CBU was a participant in a government-backed, tax-free, bond-financing program, through which “it has raised over $100 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 to proceed with her claim. Southwick recently filed for summary judgment.
“This case stands for the proposition that a religiously affiliated institution that makes services available to the public and receives public funds can’t engage in gender identity discrimination,” says Southwick.
The case has received widespread attention. In a front-page article in the Los Angeles Daily Journal, Suzanne Goldberg, director of the Center for Gender and Sexuality Law at Columbia Law School, called Judge Perantoni’s ruling “enormously significant.” The Huffington Post called Ms. Javier’s lawsuit one of the “biggest transgender moments of 2013.”
Southwick, who turned 30 in December, is working on the case with our Portland partner Timothy Volpert and in collaboration with Clifford Davidson of Sussman Shank LLP.