Transgender Setback

Federal judge rejects suit over U. of Pittsburgh expulsion related to use of men's restrooms by student who identified as male but lacked the legal status to be a man.

April 3, 2015

A federal judge has dismissed a lawsuit by Seamus Johnston, a transgender man who was expelled from the University of Pittsburgh at Johnstown in 2012 in a dispute over his use of men's bathrooms and locker rooms.

The judge rejected the idea that a transgender man who has not been recognized by legal authorities as having completed a gender transition could claim protection based on transgender status under federal anti-bias statutes.

The decision concerns advocates for transgender students and faculty members in academe, because it goes against a recent trend of extending such protections. Indeed, just this week the U.S. Justice Department sued Southeastern Oklahoma State University over a tenure denial allegedly influenced by administrators' dislike of a tenure candidate's transgender status. (The university denies wrongdoing.)

Johnston was an undergraduate computer science major at Pitt's Johnstown campus for five semesters, from 2009 through 2011. Although he listed female on his application for admission, reflecting his gender assigned at birth, he identified as a male throughout his time there (and had done so before enrolling as well). While a student, Johnston participated in therapy programs related to his gender identity and started to take hormones to make parts of his body more male. He changed his name legally to the one he uses, and presented Pitt with a document showing this. But he never convinced Pitt that he had in fact legally become a man. The university said he needed a birth certificate to reflect his male status.

While at the university, Johnston used men's bathrooms, without incident at first. But he enrolled in a men's weight training course and started using the men's locker room. The university asked him to stop, and offered him the use of a unisex locker room used typically by referees. Johnston continued to use the men's locker room and bathrooms, and he eventually faced charges that he was violating specific university rules.

He was found guilty in a university disciplinary hearing of "exhibiting disorderly, lewd or indecent behavior" and disregarding directives from the university, in connection with his refusal to stay out of men's locker rooms and bathrooms.

Federal Judge Kim R. Gibson dismissed Johnston's suit, saying that his transgender status was not covered by either the Constitution's equal-protection clause or Title IX of the Education Amendments of 1972, which bars sex discrimination by institutions receiving federal funds.

With regard to the equal-protection clause, Gibson writes that transgender status is not a "suspect class" under equal-protection review, so that Pitt can prevail as long as it shows a "rational basis" for its actions. The university "explained that its policy is based on the need to ensure the privacy of its students to disrobe and shower outside of the presence of members of the opposite sex. This justification has been repeatedly upheld by courts," Gibson writes.

With regard to Title IX, Gibson writes that "the plain language of Title IX does not prohibit discrimination on the basis of gender identity," and thus rejects that claim.

While Gibson's analysis of the origins of Title IX is likely difficult to challenge, the U.S. Education Department has been applying Title IX to transgender cases. In a 2013 dispute resolution that signaled a shift, the U.S. Departments of Justice and Education jointly determined that California's Arcadia School District violated Title IX by barring a transgender student from sex-specific facilities and activities. Experts at the time said that the implications of the agreement would extend to higher education.

Ilona Turner, legal director of the Transgender Law Center, issued this statement: "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."

While Judge Gibson essentially rejected all of Johnston's arguments, he also indicated awareness that the law and societal attitudes are currently evolving with regard to transgender people. "The court notes that society’s views of gender, gender identity, sex and sexual orientation have significantly evolved in recent years," Judge Gibson writes. "Likewise, the court is mindful that the legal landscape is transforming as it relates to gender identity, sexual orientation and similar issues, especially in the context of providing expanded legal rights. Within the context of these expanding rights and protections arises the profound question of self-identity, as exemplified by this case. But while this case arises out of a climate of changing legal and social perceptions related to sex and gender, the question presented is relatively narrow and the applicable legal principles are well settled."

A statement from Pitt late Thursday said that "because it is never our intent to violate anyone's rights, we are pleased with Judge Gibson's decision." The decision said that Johnston failed to abide by an agreement to use a unisex locker room and brought his difficulties on himself by doing so. Some students had complained about his use of the men's locker room, the statement said.

But aside from the legal issues in the case, the statement stressed that Pitt's anti-bias rules include gender identity. Further, the statement said that Pitt has been moving to do more for its transgender students.

"The university has systems in place in which we listen to our students about their concerns and requests," Pitt said. "As part of this process, the university endeavors, whenever appropriate, to accommodate those concerns. By way of example, specific changes that have evolved as a result of this dialogue have included increasing the availability of single-use restrooms and locker rooms throughout campus, accommodating student requests to change their name in records and classroom rosters, and retaining physicians and counselors with expertise in areas affecting the L.G.B.T.Q. community."


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