The University of Pennsylvania, widely regarded as a progressive institution, is arguing in court documents that transgender individuals in the region aren’t protected from discrimination under Title VII of the Civil Rights Act, a federal workplace-antibias law.
Penn and the Hospital of the University of Pennsylvania were sued in July by “Jane Doe,” a trans woman and former employee at HUP who alleges she was illegally fired from her job at HUP after experiencing severe harassment while a patient there.
One of her claims is employment discrimination covered by Title VII, which bans workplace bias based on sex, race, color, religion or national origin. But Penn defendants recently filed a legal document claiming that discrimination based on transgender status is not actionable under Title VII in the Third Circuit.
The Third Circuit covers Pennsylvania, New Jersey, Delaware and the Virgin Islands.
“While the United States Supreme Court is currently considering the issue of whether Title VII protection should extend to gay and transgender employees, the Third Circuit does not currently recognize such protections,” Penn defendants state, in a legal filing.
To justify their position, Penn defendants rely on a four-year-old case known as Johnston v. University of Pittsburgh. The case involved a trans student at Pitt who was denied access to a gender-appropriate locker room and restroom facilities. The judge in the case stated that “nearly every federal court that has considered the question in the Title VII context has found that transgendered [sic] individuals are not a protected class under Title VII,” and noted that the Third Circuit had not addressed the issue, according to Penn’s filing.
Therefore, according to Penn, Doe’s Title VII claim should be dismissed under the current state of the law in the Third Circuit.
The U.S. Supreme Court is currently considering three LGBT discrimination cases and whether Title VII covers them.
Julie Chovanes, an attorney for Doe, distanced Doe’s case from the cases currently under review by the Supreme Court. Chovanes argues in a rebuttal filing that her client experienced gender stereotyping by Penn defendants. Chovanes notes that judges in the Third Circuit have recognized that gender stereotyping is a form of sex discrimination.
“Defendants’ argument with regard to Title VII ignores the difference between the claims in the cases before the Supreme Court, and Doe’s claims,” Chovanes’ filing states. “Gender stereotyping claims under Title VII — which transphobic behavior is — are well in line with Third Circuit precedent, as this court recently acknowledged in a very recent opinion by Judge [Joel] Slomsky, Doe v. Parx Casino.”
Jane Doe’s case is assigned to U.S. District Judge Mitchell S. Goldberg. He recently told Penn defendants they have until Nov. 7 to file a formal “motion to dismiss” if they want to pursue their objections to Doe’s Title VII claim and other claims made by Doe.
Neither side had a comment for this story.
Justin F. Robinette, a local civil-rights attorney who’s following the Doe case, said he was disappointed with Penn’s legal stance. “It’s disappointing that an Ivy League school like Penn chooses to take such a regressive, anti-trans position in a legal filing,” Robinette said. “Legal precedent is pretty clear that trans people are protected under Title VII in our circuit. Penn [defendants] cited a four-year-old ‘bathroom’ case to justify their position. There have been many court rulings since 2015 that affirm protections for trans individuals under Title VII. Rather than arguing the merits of the case, Penn is taking an anti-trans position — which is at odds with its reputation as a liberal, progressive institution.”