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July 11, 2013

Bias complaint goes against Pitt

The Pittsburgh Commission on Human Relations has found probable cause in the Rainbow Alliance’s 2012 discrimination complaint against the University.

Attorneys for the student group are hailing as an “initial victory” both the ruling and a statement on the use of campus restrooms, which has been posted on the University’s student affairs web pages.

However, P. Jerome Richey, Pitt’s general counsel, said the University intends to ask the commission to set aside its decision.

The complaint

In its complaint, filed in April 2012 and amended in June 2012 (see Oct. 11, 2012, University Times), the Rainbow Alliance claimed some University policies and practices discriminate on the basis of sex against people who are transgender, changing their gender identity or non-gender-conforming.

The group’s stated main purpose is “to foster acceptance of all individuals regardless of their sexual orientation and/or gender identity and to create an atmosphere free of prejudice, persecution and intolerance.”

The complaint stated that individuals were prohibited from using facilities such as “bathrooms, locker rooms, student housing and other accommodations provided with extracurricular activities” that correspond to the gender with which they identified, if that gender differed from what was shown on the person’s birth certificate.

It also claimed transgender students were discriminated against by being required to provide birth certificates or medical documentation in order to change their gender/sex designation on University transcripts, official records and in pronouns/salutations in University correspondence.

Under the city code, the definition of sex includes “the gender of a person, as perceived, presumed or assumed by others, including those who are changing or have changed their gender identification.”

The decision

In presenting details of the commission staff’s investigation at the commissioners’ July 1 meeting, commission director Charles Morrison said, “The investigation in this matter found that in the spring of 2012 [the University] publicly announced the policy practice requiring the use of birth certificates to determine gender in the usage of men’s and women’s restrooms, locker rooms, shower facilities and student housing on campus.”

He told commissioners, “The investigation showed that a court order is required to have a birth certificate changed. To change a gender on a birth certificate a person is required to provide evidence that gender reassignment surgery has been performed. The investigation further showed that the majority of transgender persons do not have gender reassignment surgery. Using the appropriate restrooms, as far as gender transition, ties in with the transgender person’s need to live, be seen and treated by others in a manner that is consistent with his or her gender identity.”

Commissioners agreed with the staff recommendation in finding probable cause for the Rainbow Alliance’s complaint.

Morrison told the University Times that the commission’s mandate is to seek satisfactory adjustment of all complaints, adding that behind-the-scenes attempts at conciliation have been underway while the staff investigation was in progress.

Because much of the commission’s work is confidential, Morrison could not comment specifically on the Rainbow Alliance complaint beyond what was discussed in the public meeting.

What comes next

Following a commission finding for probable cause, a commissioner will attempt to bring about a resolution through a private meeting between the parties. If that fails, a panel would be appointed to resolve the issue in a public hearing, Morrison said.

Where a violation of the law is alleged, the commission is required to bring the party into compliance with the law, remedy any harm and put in place remedial measures such as policy revisions, Morrison said. “A solution is custom-designed,” he said. “Every case is different.”

The University has until July 12 to request the commission set aside its finding. While Richey said the University intends to make the request, it had not as of the University Times’ press time on July 10.

Speaking in general terms, Morrison said grounds for a reconsideration request would need to be based on some procedural argument — that the commission misapplied the law, that the facts did not support the conclusion or that there had been a violation of due process, for instance.

Guidance on restroom use

Although issues remain, “We’re very encouraged,” said Susan J. Frietsche, an attorney for the Women’s Law Project, which is representing the Rainbow Alliance in its complaint.

“The University has agreed, prior to the finding, to allow people to use the bathrooms with which they identify,” Frietsche said, citing a statement posted May 21 on the Pitt web site’s “single use restrooms on campus” page ( that lists the locations of non-gender-specific restrooms on campus.

It states, in part: “The University trusts that members of the campus community and their guests will exercise sound judgment and discretion when accessing and using the restrooms.”

Frietsche said, “The statement means that no birth certificate is needed for anyone at Pitt to use the bathroom of the gender with which they identify.”

Provost Patricia E. Beeson, in a broader conversation with the University Times earlier this month on steps Pitt has taken to make the campus more inclusive, confirmed that the statement is intended to guide use of all restrooms on campus.

“We expect people to use the restroom that they’re most comfortable with,” she said, adding that Pitt never had a policy requiring a birth certificate to justify restroom use.

Frietsche said, “It’s important that everyone know they can use the correct restroom,” opting not to debate whether such a policy existed. “The important thing is that it is no longer the case,” she said, adding that the Women’s Law Project and Rainbow Alliance will work together to ensure that the guidance is clear — “especially to members of the transgender community.”

Michael O’Brien, Rainbow Alliance vice president, told the University Times, “This is a big step forward for Rainbow Alliance and Pitt. We want the University of Pittsburgh to be as safe and as accepting as possible to the students going there, because we love Pitt so much.” O’Brien added that the Rainbow Alliance doesn’t aim to be antagonistic or vindictive. “We want to make sure the public knows that Pitt is making changes that are making the campus more LGBTQA friendly.”

Unresolved issues

Issues do remain, Frietsche said, noting that other aspects of the complaint — including locker rooms, housing, registrar policies and accommodations for extracurricular activities — have yet to be resolved. “We’re very encouraged,” she said, “but there is still a lot of work to be done.”

Because human relations commission mediation discussions are confidential, Frietsche would not comment on the tone or frequency of any meetings with University representatives, nor would she offer details on how close a resolution might be.

“We’re always willing to meet with the University to make further progress,” she said.

In a statement provided to the University Times, Richey stated: “The University is committed to providing a welcome and inclusive environment for all members of its institutional community. In doing so, it must consider the interests of all students. Its current practices reflect that commitment.”

In reference to restroom use, Richey stated: “The University of Pittsburgh has adopted practices that are consistent with other leading American higher education institutions, that are considerate of the entire student body and that balance the interests of students on a case-by-case basis.”

Regarding the initial finding, the commission “appears to believe that any student has the right to demand access to a wide range of facilities — restrooms, locker rooms, residence hall rooms — solely on the basis of his or her claim of gender identification or expression, regardless of anatomical realities, and with no consideration for the privacy interests or objections of other students. Presumably, the commission also believes those same rights would extend, at least in the case of restrooms and locker rooms, to employees and to anyone visiting the campus.”

Richey stated it seems that the commission seeks to impose standards on Pitt that exceed those that apply to the commission itself. “The University is neither aware of any comparative ‘restroom access’ practices having been adopted by the City of Pittsburgh, nor does the commission’s determination cite to any such practices in operation within city-owned buildings.”

—Kimberly K. Barlow

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