Friday, April 03, 2015

Expulsion for bathroom use

My last blog post a few weeks ago was a hopeful one about transgender students and bathrooms.

This post, less hope, more dismay. A federal judge has ruled that the expulsion of Seamus Johnston from the University of Pittsburgh at Johnstown was not in violation of anti-bias statutes and dismissed his lawsuit. Johnston, a transgender man, was expelled in 2012 from the University of Pittsburgh at Johnstown for "exhibiting disorderly, lewd or indecent behavior." What did he do? He used the men's bathroom and locker room facilities.

We had not heard of this story at the time. It surely would have been one of the earlier cases of transgender bathroom policy. This ruling, had it occurred at that time, would have preceded the recent spate of cases in which students have been given the right to use facilities in accordance with their gender identity. This week's ruling back then would still have been problematic; but now it seems anomalous and thus even more worrisome. Even though there has been strong opposition to transgender students using bathrooms and locker rooms in accordance with their gender identity, largely from religious organizations, policies and legal rulings have upheld these rights. Not so here.

Johnston used men's bathrooms without (according to Inside Higher Ed's article--linked above) any problems. It was, apparently, his use of the men's locker rooms when he was taking a course in weight training where he ran into problems--seemingly from the administration. There is no report of student complaints, though that does not mean there weren't any. They wanted him to use a unisex bathroom. He continued to use the men's facilities. This led to the disciplinary hearing and his expulsion for the "lewd behavior."

The university claims that Johnston could not use the men's bathrooms and locker rooms because he was not legally a man. He had identified as a man since his enrollment in 2009 and began hormone therapy when he was a student. He had legally changed his name and presented the documentation of this fact to the university. Johnston offered "proof" of his gender identity that was both more than adequate and unnecessary. This burden of proof on transgender students continues to be, well, a burden. But the university wanted a birth certificate.

We have discussed, mostly in the context of interscholastic and intercollegiate sports, the issues with a birth certificate requirement. Many states will not, for example, re-issue a birth certificate for change of gender. This legal requirement is one that the IOC mandates for transgender athlete participation--one of the many critiques of IOC policy. Now a university is requiring that document--for a student who wants to use the men's bathroom. Seamus Johnston will be the same person with or without that document. Without it he is a person who commits acts of lewd behavior. With it, according to the University, he is a man who is not infringing on anyone's privacy rights or acting in an unbecoming way. This is the paradigm that the federal court upheld in dismissing Johnston's lawsuit.