Can a private, Christian university expel a student for writing “female” on her admissions application when she was born male? That was the question debated Friday in a California state courtroom, where a decision due next month could redefine the scope of civil rights protections for transgender individuals.
Twenty-six-year-old Domaine Javier was working toward her nursing degree at California Baptist University (CBU), where she received two scholarships -- one academic, and another for music. But after Javier revealed herself to be transgender on the MTV reality show, “True Life,” the university accused her of fraud. She was soon expelled in 2011.
“I wasn’t expecting this at all,” said Javier, whose driver’s license and Social Security records both reflect that she is female, to msnbc. “I went [to MTV] basically just to get something off my chest and to inspire people through my story.”
A little more than a year ago, Javier filed a lawsuit alleging that the school had violated California’s Unruh Civil Rights Act, which protects individuals from discrimination by any business establishment on the basis of age, ancestry, color, disability, genetic information, medical condition, marital status, national origin, race, religion, sex, and sexual orientation. The statute also explicitly states that protections based on sex include “pregnancy, childbirth, medical condition related to pregnancy or childbirth, gender, gender identity and gender expression.”
Unlike federal nondiscrimination laws, the Unruh Civil Rights Act does not include an exemption for religious organizations.
“It basically applies to any business in the state of California,” said Elizabeth Gill, senior staff attorney at the ACLU of Northern California. However, “courts have found -- rightly or wrongly -- that there are various organizations where Unruh doesn’t apply.”
In 2008, California’s Supreme Court cited Unruh’s protections in deciding that a private medical clinic could not turn away a lesbian couple because of the physician’s religious objection to homosexuality. And yet, a year later, the same court declined to review a decision that affirmed a private religious school’s right to expel students because they had engaged in homosexual relationships. In that case, the Riverside County Superior Court and Fourth District Appellate Court ruled in favor of the school, finding that it was not a “business establishment” subject to Unruh’s regulations.
Javier’s legal team is hoping to convince the court otherwise this time around.
“We’re dealing with adults who are entering into a pretty hefty financial transaction for the purpose of advancing their careers,” said attorney Paul Southwick, pushing back against the argument that the university isn’t a business. “CBU is about getting people an education in exchange for money.”
Regardless of whether California Baptist has the legal right to bypass Unruh in enforcing its own conduct rules, LGBT rights advocates believe Christian schools have fundamentally misunderstood what the Bible says about gender identity -- which is basically nothing.
“There’s nothing in Christian doctrine that addresses gender identity,” said Dr. H. Adam Ackley, a gender and sexuality studies professor at the University of California (Irvine) and a board member at SafetyNet, an LGBT advocacy organization for students at Christian colleges. “I don’t think Christians who object to transgender identity have given us a clear reason. I can’t find any evidence that there’s anything negative addressing transgender identity in the Bible.”
Ackley, who agreed to give up his job at a different Christian college for being transgender, later followed up on this point via email:
“Thought more about your question regarding why Christian universities claim transgender identity is unbiblical and remembered the only recurring argument as ‘God created gender’ in uncritical, decontextualized, mistranslated reference to Genesis 1.26-28 that God created a binary gendered pair of humans originally (also the anti-gay-marriage argument). However, in the original Hebrew it is quite clear that the original human ("ha'adam" -- the creature made of earth or soil, which is what I took for my new male name when I chose to transition) is undivided into genders -- one we might call transgender or intersex these days. The division into two genders happens AFTER God creates and calls this original human good (division into man / woman in chapter 2 verse 22). So it's a bad argument and not one I take seriously.”
On its undergraduate application, CBU lays out strict standards for its students -- including attending chapel once a week, completing nine courses in Biblical Studies, and staying away from alcohol and tobacco. It also states that students must refrain from “profanity, harassment, physical or verbal abuse, the threat or use of physical violence, coercion, intimidation, and/or sexual conduct outside of marriage, as defined in the Baptist Faith and Message, June 200, Article XVIII.”
At no point does the application say anything about living as the sex to which one was born.
“Tellingly, the university hasn’t claimed any First Amendment right to discriminate, and I think it’s because they don’t have one,” said Southwick. What they are claiming, he continued, is that “when a transgender person like Domaine selects ‘female’ for her gender, but she was born a male, we think that’s fraud, and we can expel her for that reason.”
“That conclusion,” he said, “is based on stereotypical notions of sex and gender that the law no longer recognizes.”
While public opinion about the rights of gays and lesbians has undergone a rapid transformation over the last few months -- including among the religious community -- perceptions toward gender identity have been slower to evolve. But evolving, they are.
In 2012, the American Psychiatric Association revised its Diagnostic and Statistical Manual of Mental Disorders to no longer classify transgender people as having a “disorder.” Months later, California passed Assembly Bill 1266, which prohibits discrimination against transgender students in every public school district.
Still, as Friday’s hearing shows, a considerable amount of misunderstanding and prejudice lingers -- as evidenced, most notably, by the defendants refusal to use female pronouns when talking about Javier in court.
“I am Catholic, and I believe that God doesn’t make mistakes and God doesn’t judge,” said Javier, trying to stay optimistic midway through Friday’s proceedings. “I’m just really hoping for the best and hoping to be a nurse some day like I always dreamt of.”