The battle to protect the rights of transgender individuals is fought on many fronts. The California Fair Employment and Housing Act (FEHA) establishes that transgender people have the same civil rights in housing and employment as every Californian. Of course, having the law on your side is not the same as being free from harassment and discrimination. FEHA is an important tool in the fight for equal treatment, but more needs to be done.
Today’s question comes from Gina J. from Los Angeles: “I used to live in San Francisco and read your column. I moved to L.A. recently. I am a trans-woman and as part of my transition I wanted to undergo breast implantation. I found an excellent surgeon and he scheduled my surgery at a local hospital that is part of a religious healthcare system. I had received approval from MediCal and was excitedly awaiting my surgery when my doctor sent me an e-mail, accompanied by a letter from the hospital stating that, because of their religious beliefs, I could not have my surgery “because God made me a man.” Is this legal?”
Dear Gina, I am surprised that this kind of discrimination continues. In 2008 I brought action for a woman named Charlene Hastings against Seaton Hospital when they engaged in similar discriminatory conduct.
On November 30, 2010, the LPGA voted to reverse its policy that only women “born female” can be LPGA members and participate in LPGA events and schools. This action came as a result of a lawsuit filed by The Dolan Law Firm on behalf of its client, Lana Lawless, in October of this year. Ms. Lawless had applied to join the LPGA and her request was rejected because she, as a transgender female, was not “born female.” Likewise, Ms Lawless, the Long Drivers Association of America (LDA) 2008 world champion, sued the LDA after it changed its rules in 2010 to require that competitors be “born female.”
A part of the lawsuit was a request that the LPGA and LDA be prohibited form holding tournaments or doing business in California until and unless they reversed their discriminatory policy. The California UNRUH non-discrimination act prohibits discrimination based on a number of protected classifications, including transgender status.
“This is a major victory not only for transgender golfers, but for everyone who supports full civil rights for all individuals,” says Chris Dolan of the Dolan Law Firm, who is representing Lana Lawless in the lawsuit against the LPGA. “We hope that the LPGA will implement rules consistent with the International Olympic Committee so as to have clear guidelines for transgender participation. If they do so, and allow Lana to participate fully in LPGA activities, tours and pro school, a major goal of this lawsuit will have been accomplished and it will pave the way for Ms. Lawless and the LPGA to discuss resolution of the lawsuit. Hopefully, it will also cause the other defendant, the Long Driver’s Association, to change their discriminatory policies. If they do not, then we will proceed full speed ahead against them, until Ms. Lawless civil rights are fully restored.”
Ms. Lawless stated: “I am glad that the LPGA has reversed its discriminatory policy. I hope that this sends a clear message to everyone that transgendered people have rights. It is unfortunate that I had to file a lawsuit to have my civil rights respected but I am glad that our legal system stands for the rights of everyone, not just the majority. I am looking forward to the LPGA rule changes being published and to being informed that I can participate in Pro School and, if I desire, the Tour. While this does not relieve the bitter sting of my having been discriminated against, I feel vindicated and I hope no other trans person will have to take legal action to be afforded equal opportunity.”
This lawsuit involves a student chapter of the Christian Legal Society (CLS) and its affiliated school, the University of California’s Hastings College of the Law (Hastings), located in San Francisco. On review, the Supreme Court will be considering whether a public university may require student organizations to comply with a nondiscrimination policy as a condition of official recognition.
This case has travelled a long road, and the final decision is now within sight. The district court initially found in favor of Hastings. CLS appealed, and the lower court verdict was affirmed, for Hastings. CLS petitioned for a writ of certiorari in the U.S. Supreme Court in hopes of winning a review and reversal of the appellate opinion based on a similar case with a very different outcome. Their request was approved late last year. Arguments in front of the Supreme Court are expected to be heard on April 19, 2010.
Religion v. Nondiscrimination
As a national association, CLS aligns various legal professionals and law students and encourages them to promote and act on behalf of their Christian ideals in the practice of law. Student chapters are expected to do the same. One of the group’s core beliefs is that sexual contact outside of a marriage between a man and a woman is sinful. In their initial complaint, the group stated that this belief bars anyone who engages in or agrees with homosexual conduct from becoming a member or officer of the Hastings CLS chapter.
Hastings required registered student groups to agree to a policy that they will not discriminate based on religion and sexual orientation, as well as race, color, national origin, ancestry, disability, age and sex. And in exchange for compliance, Hastings permits student organizations to use campus facilities for meetings or events and gives them a share of student activity fees, among other exclusive benefits.
In 2004, CLS removed the references to religion and sexual orientation from its constitution’s nondiscrimination clause. The group then began compelling members and officers to sign a statement of faith in order to more closely affiliate with its national counterpart. This document blatantly excluded anyone who did not align with their Biblically orthodox faith, especially in the areas of non-Christian religions and sexual orientation. These factors ultimately led to the revocation of its official status as a student organization at Hastings.
Balancing Rights on Both Sides
Shortly after they lost their registered status and its perks, CLS sued Hastings. CLS claimed Hastings infringed upon its Constitutional rights. Specifically, the First Amendment guarantees of freedom of expressive association, free speech and prohibition against an establishment of religion. They also cited violation of their Fourteenth Amendment due process and equal protection privileges, which include a failure to give advanced notice of noncompliance. CLS believes that by rejecting their registration, Hastings was discriminating against their religious views.
Because Hastings is a public law school and receives funding through the state of California, they are bound by federal and state anti-discrimination laws. Hastings argues that requiring adherence to their nondiscrimination policy is viewpoint neutral and applies to the general college population. The policy does not seek to change the beliefs of religious student groups, but instead demands that their membership and operations are conducted in a non-discriminatory manner. After all, if Hastings allowed a religious expression exception to a group like CLS, some of their students would be providing funding through activity fees to campus organizations from which they are excluded.
Rights of the Discriminated
Whatever the verdict, the public should be aware of the questions that cases like
Christian Legal Society v. Martinez pose. Can a state-run college discriminate against certain student groups who have religious beliefs that violate all or parts of their nondiscrimination policy? Should a university student group be permitted to discriminate against people based solely on sexual conduct or approval of it? What rights are being violated here and which should be protected in the interest of justice?
State schools should practice non-discrimination. All students, regardless of sexual orientation or religious beliefs, are entitled to full participation and equal status. Groups that foster hate, bigotry and/or discrimination should not be funded with state and students dollars.
Contact Our San Francisco Employment Law Attorneys
Contact the Bay Area discrimination attorneys of the Dolan Law Firm for a free case evaluation and assistance in filing your claim. If you have suffered retaliation or lost your job because you sought to protect your rights, we are on your side. Our San Francisco employment law attorneys have three office locations for your convenience: San Francisco, Sacramento and Oakland.
A transgender woman and San Francisco resident Amber Yust, represented by the Dolan Law Firm, settled her privacy and civil rights lawsuit with the San Francisco DMV.
In October 2010, a DMV employee, who had a known history of denying equal service to transgender customers, retained Yust’s personal information through his employment at the DMV. The employee then used the information to send her materials condemning her transgender status, and calling for homosexuals to be “put to death.”
The matter resolved with the State of California for $40,000, and with the former DMV employee for $15,000. As a part of the settlement, the DMV agreed to work with the Transgender Law Center in an effort to incorporate transgender sensitivity into its ongoing employee training.
At The Dolan Law Firm, our California transgender rights lawyers fight for the rights and dignity of transsexual people.
Dolan said, “this suit affirms the right of all people to equal access to government services, regardless of their orientation or decision to make a transition to live life as their full and complete self. In the big picture, this suit promotes the privacy rights of all Californians by ensuring that confidential information retained by our government stays confidential.”
This settlement comes in the wake of another legal milestone for transgender civil rights. The Dolan Law Firm, a prominent leader in LGBT rights, represented Lana Lawless in her suit against the Ladies Professional Golf Association for denying her the right to compete based on her transgender status. Shortly after the lawsuit was filed, the LPGA removed its longstanding “female at birth” requirement, which precluded transgender women from participating in the organization. Lawless’ case against the LPGA was resolved to the mutual satisfaction of all parties.
