Hey Religious Schools! Being Trans is Not Fraud
One trans woman is suing a religious university for kicking her out on the grounds that she had committed “fraud” because she didn’t disclose that she is trans. This fight matters, and here’s why.
Twenty-six year old California resident Domaine Javier was riding high when she was accepted by California Baptist University’s nursing program with two scholarships, one for her academic ability and another for her audition to the university’s woman’s chorus. Javier has a long term ambition to be a nurse, and felt like her life was now on the right track.
Seemingly quite apart from this, once in school, Javier went on to appear in an episode of MTV reality show “True Life,” an Emmy-award winning show that aims to catch a glimpse of the diverse experiences of young people from different backgrounds growing up in America today. In that episode, Javier revealed that she is living her life as a now gender affirmed woman who was born male.
Relatively soon after that episode aired in 2011, Javier received a letter from the California Baptist University, telling her that she was expelled and accusing her of committing fraud. The university says that when, on enrollment, Javier ticked a box identifying herself as female she should have ticked the box marked “male” because that was the sex she was born. Both Javier’s Social Security records and her driver’s license identify her as female and, as a result, the state of California recognizes her as the woman she is.
The university also maintains that Javier is living outside of the university’s stringent religious code, essentially by her being trans. While there are a number of provisions in the highly demanding university code of conduct, including one against same-sex marriage and sex outside of marriage, there appears to be absolutely no mention of trans identity, or even any loosely analogous language to that effect. It seems the university has supposed that its so-called “Biblical ethos” that is mentioned throughout the student handbook covers a ban on gender transition, but this is heavily disputed.
The lawsuit, which was heard last week in a California Riverside court, asserts that the university is in clear violation of the Unruh Civil Rights Act, an act that essentially applies to all California businesses (and appears to cover universities in this regard) and prohibits discrimination against standard classes like race and ethnic background. While federal law carries religious exemptions, the Unruh Civil Rights Act gives no special power to religious universities to discriminate on grounds of their faith. What’s more, the Act specifically prohibits discrimination on the grounds of sex and gender identity.
Previous rulings by the federal courts have been conflicting in how this should apply to religious entities, with some saying that hospital staff cannot discriminate against gay people on the grounds of religious objections. However, in this case it actually appears that precedent goes against claims like Javier’s, with the circuit court ruling that universities do have the right to expel students based on a violation of the university’s religious ethos as protected under federal law.
However, Javier’s legal team, which involves the ACLU, is arguing that this particular charge is different. The idea that Javier committed “fraud” is injurious to Javier, her team argues, as well as that she in good faith recorded all of the details that were demanded by the contract she signed with the university — in effect, it’s not her fault that the university didn’t specify that being trans would be a disqualifying factor — and that the university broke that contract for a supposed violation that, Javier contends, isn’t mentioned anywhere in the university’s code of conduct.
“I believe that education is for everyone, regardless of their gender,” Javier is quoted as saying. “Everyone deserves a shot at a bright future. CBU deprived me of this right and treated me unfairly — something no one deserves.”
During the court hearing into this case, NBC reports the university’s legal representation (which has so far refused to comment on this issue) refused to use female pronouns when referring to Javier, transphobia that in addition with the distasteful charge of fraud suggest that the university isn’t just discriminating by the letter of its law but really means to hammer home its transphobia.
The law in this situation is quite complex. On the one hand, the university is a private religious university and can demand of its students a great deal in terms of complying with its expectations. However, in terms of fairness practices, Javier is a committed Catholic and has so far not been accused of any other violation. If the university did not specifically ban trans applicants, which it doesn’t seem to have done, it seems Javier has a strong claim.
This speaks to a series of cases that have happened across the United States where religious entities that are trans-hostile are facing discrimination complaints and lawsuits because of their sometimes legal but always unfair practice of excluding trans people. Given that federal law arguably places a great deal of weight on sex discrimination claims though, this could be an interesting fight and how the courts will balance this complaint will be read as having a wider meaning for other trans people and religious entities throughout the United States.
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