University Times

A transgender former Pitt-Johnstown student has met with more roadblocks — this time in federal court — in his claim that the University discriminated against him on the basis of sex.

Seamus Johnston, who was born female but identifies as male, was a junior when he was banned from campus in fall 2011 then expelled in 2012 following his refusal to cease using men’s restroom and locker room facilities at UPJ.

The University has required individuals to use facilities in accord with the gender on their birth certificate.

UPJ police charged Johnston with indecent exposure, defiant trespass and disorderly conduct, all misdemeanors, in connection with his use of the campus facilities. He pleaded guilty to reduced charges and was sentenced in June in Cambria County court to six months’ probation plus fines and fees totaling $150. (See June 13 University Times.)

Johnston unsuccessfully took his sex discrimination complaint to the Pittsburgh Commission on Human Relations in 2012, but because the alleged discrimination occurred in Johnstown, the case was dismissed.

Most recently, a federal magistrate judge has recommended dismissing Johnston’s Sept. 16 pro se claim, in which the former student sued the University for discrimination and breach of contract. (See Sept. 26 University Times.)

Although U.S. Magistrate Judge Keith A. Pesto granted Johnston’s motion to proceed in forma pauperis — exempting the filing from court costs — he recommended Johnston’s complaint be dismissed for lack of a viable federal claim.

Pesto’s report, filed Oct. 29, cites federal precedent for classifying discrimination on the basis of transsexual or transgender status or failure to conform to gender stereotypes as sex discrimination.

However, “use of a locker room or a restroom reserved for the other biological sex does not constitute a mere failure to conform to sexual or gender stereotypes,” Pesto stated, adding that unless UPJ had a legal duty under the Education Amendments of 1972 to allow Johnston to use the facilities based on his gender self-identification, Johnston had no federal claim.

“This is most certainly an area to wait for legislative direction,” Pesto wrote, labeling it “the business of Congress” to deal with “such momentous issues as changing concepts of gender identity and the scope and expense of changes that should and should not be made.”

Federal law gives Johnston 14 days to amend his complaint.

He has asked for a 60-day extension to the Nov. 12 deadline, which would give him until Jan. 14 to secure legal counsel and to file an amended complaint.

In a Nov. 7 motion, Johnston stated that the National Center for Lesbian Rights had agreed to represent him, contingent on finding local pro bono counsel and receiving an extension to the deadline. No response to Johnston’s request had been posted as of the University Times press time on Wednesday.

—Kimberly K. Barlow