University Times

A federal judge in Pittsburgh has sided with the University in dismissing a sex discrimination case brought by a transgender former Pitt-Johnstown student who was prohibited from using men’s locker rooms and restrooms at UPJ.

Seamus Johnston, who was born female but identifies as male, was banned from the UPJ campus in 2011 and later expelled for refusing to stop using the men’s facilities. (See Jan. 9, 2014, University Times.)

In an amended federal complaint filed in June 2014, Johnston claimed sex discrimination and retaliation under the Constitution’s 14th amendment equal protection clause and under Title IX, as well as discrimination under the Pennsylvania Human Relations Act and the Pennsylvania Fair Educational Opportunities Act. He also alleged that UPJ breached its policy prohibiting discrimination based on gender identity and expression.

U.S. District Judge Kim R. Gibson dismissed the federal claims but declined to exercise supplemental jurisdiction over Johnston’s state law claims. In a memorandum accompanying his March 31 order, Gibson stated: “This case presents one central question: Whether a university, receiving federal funds, engages in unlawful discrimination, in violation of the United States Constitution and federal and state statutes, when it prohibits a transgender male student from using sex-segregated restrooms and locker rooms designated for men on a university campus. The simple answer is no.”

In his decision, Gibson stated: “At the heart of this case are two important but competing interests. On the one hand is Plaintiff’s interest in performing some of life’s most basic and routine functions, which take place in restrooms and locker rooms, in an environment consistent with his male gender identity. On the other hand is the University’s related interest in providing its students with a safe and comfortable environment for performing these same life functions consistent with society’s long-held tradition of performing such functions in sex-segregated spaces based on biological or birth sex.”

In dismissing the equal protection claim, Gibson noted that transgender has not been recognized as a suspect classification (meeting criteria that would suggest the group likely is the subject of discrimination) under the equal protection clause and that the University’s policy of “segregating its bathroom and locker room facilities on the basis of birth sex is ‘substantially related to a sufficiently important government interest,’ … the need to ensure the privacy of its students to disrobe and shower outside of the presence of members of the opposite sex.”

In dismissing Johnston’s Title IX claim, the judge stated: “Specifically, the University’s policy of requiring students to use sex-segregated bathroom and locker room facilities based on students’ natal or birth sex, rather than their gender identity, does not violate Title IX’s prohibition of sex discrimination,” noting that Title IX regulations permit institutions to provide separate toilet, locker room and shower facilities on the basis of sex.

“The exclusion of gender identity from the language of Title IX is not an issue for this Court to remedy,” the judge stated in his opinion.

Although Johnston identifies his gender as male, “his birth sex is female,” the judge stated. “It is this fact — that Plaintiff was born a biological female, as alleged in the complaint — that is fatal to Plaintiff’s sex discrimination claim.”

The judge stated: “Regardless of how gender and gender identity are defined, the law recognizes certain distinctions between male and female on the basis of birth sex. Thus, even though Plaintiff is a transgender male, his sex is female, a fact alleged in Plaintiff’s complaint and a fact that has legal significance in light of Plaintiff’s discrimination claim.”

Although Johnston “alleges that he has held himself out as ‘male’ at all relevant times, he also alleges that, when he applied to UPJ, he stated that he was a female and that he has failed to provide the school with requested documentation, consistent with UPJ’s policy, to change the school records to reflect that his sex is male rather than female. For these reasons, (Johnston) has failed to allege that he was discriminated against because of his sex,” Gibson stated.

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According to court documents, Johnston listed his sex as female when he applied for admission to UPJ in March 2009, but began living in accord with his male gender identity in May 2009 and presented himself as male when he began attending classes that August.

Johnston presented a notarized affidavit documenting his change to a traditionally masculine name, and the University updated his student records to reflect his new name in 2011. However, he was told that a court order or new birth certificate would be required in order to change the gender marker on his record.

Johnston initially used the men’s restrooms on campus and used the men’s locker room while enrolled in a spring 2011 men’s weight training class, but that fall he was told he would need to officially change his gender through a court order or birth certificate change in order to continue using the men’s facilities.

When he continued to use the men’s locker room and restrooms in spite of the ban, he was cited by campus police. Following judicial board hearings on campus, he was suspended, barred from the campus and eventually expelled.

In addition, Johnston faced criminal trespass, indecent exposure and disorderly conduct charges. He pleaded guilty to reduced charges and was sentenced to probation and fined in Cambria County Court. (See June 13, 2013, University Times.)

Johnston also was questioned by the FBI in connection with a series of bomb threats made to the University. (See April 19, 2012, University Times.) In his complaint, Johnston alleged the University gave his name to the FBI “in retaliation for exercising his right to complain about the University’s discriminatory conduct” but failed to convince Gibson, who dismissed that allegation in his 43-page memorandum decision.

The decision can be viewed at www.utimes.pitt.edu/documents/johnstonOpinion.pdf.

—Kimberly K. Barlow