Penn withdraws position that trans workers aren’t protected under Title VII


The University of Pennsylvania this week withdrew its legal stance in a contentious court case that trans workers in the region aren’t protected from discrimination under Title VII of the Civil Rights Act, a federal workplace-antibias law.

In July, Penn and the Hospital of the University of Pennsylvania were sued 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 on the basis of sex, race, color, religion or national origin. Earlier this month, Penn 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. 

But after significant media attention, Penn’s attorneys sent a letter to U.S. District Judge Mitchell S. Goldberg on Nov. 13, withdrawing that position.

“Penn Defendants are committed to protecting the civil rights of their students,

employees, patients and others affiliated with Penn,” wrote attorney Joe H. Tucker Jr. “Penn Defendants have maintained longstanding policies of nondiscrimination with respect to sex, sexual orientation, and gender identity, among other protected characteristics. In fact, Penn’s existing policies afford greater protection against discrimination of any kind than existing federal law. Regardless of the outcome of the pending United States Supreme Court case addressing the scope of protection afforded by current federal law, the Penn defendants remain fully committed to affording the full measure of protection under their policies to our transgender patients and employees. Consistent with this commitment, we have decided to withdraw [our position that Title VII doesn’t cover trans workers].”

In a previous court filing, Penn had argued: “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.”

In justifying their previous position, Penn defendants relied 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 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, Penn defendants previously argued, Doe’s Title VII claim should be dismissed, in accordance with the current state of the law in the Third Circuit.

The U.S. Supreme Court is currently considering three LGBT discrimination cases and whether they are covered by Title VII. But Julie Chovanes, an attorney for Doe, has distanced Doe’s case from the cases currently under review by the Supreme Court. 

Chovanes argued in a rebuttal filing that her client experienced gender stereotyping by Penn defendants. Chovanes noted 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 stated. “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.”

Chovanas could not be reached for comment as related to this update. 

A HUP spokesperson issued this statement by email: “The University of Pennsylvania and Penn Medicine are proud of their strong institutional commitment to civil rights, which includes longstanding policies of non-discrimination with respect to sex, sexual orientation, and gender identity, as well as providing medical benefit coverage to transitioning students, faculty, and staff. We have amended our legal filing to make clear that we do not tolerate discrimination on any basis, including gender identity. The plaintiff’s complaint alleges conduct that is at odds with our policies and our values, and we intend to demonstrate that those allegations are without merit.” 

Justin F. Robinette, a local civil-rights attorney who’s following the Doe case, questioned why Penn initially took an anti-trans position. “I’m glad to see Penn is correcting course and won’t be actively complicit in trying to roll back LGBT protections,” Robinette told PGN. “But the question should be asked that if Penn were fully committed to LGBT nondiscrimination, why would Penn take such a position in the first place?”