When an employer disciplines, harasses, and eventually fires an employee because of her gender identity, has that employer violated federal law by discriminating on the basis of sex? It’s a question that has divided courts in recent years, and one about which Penn has recently sent troubling mixed signals.
Penn is currently facing a lawsuit from a former employee who alleges that she was fired because she is transgender. Instead of putting forward one of the myriad available defenses — like denying her accusations or offering up a “legitimate, nondiscriminatory reason” for her termination — last week, Penn filed a motion claiming that gender identity-based discrimination is not covered by Title VII, the federal law barring sex-based employment discrimination. Fired because of your boss’s “transphobic hatred”? Too bad, so sad, said Penn.
As this column was preparing to go to press, Penn reversed course, withdrawing that motion and informing the court that it is, in fact, committed to protecting the civil rights and upholding the University’s own non-discrimination policies that it claims “afford greater protection against discrimination of any kind than existing federal law.” But more than a court filing is needed — Penn even having entertained tactics so hostile to transgender rights should be deeply concerning for what it shows about both this school’s legal judgement and the actual extent of its supposed commitment to supporting LGBTQ students, faculty, and staff.
First, as law students, we can’t help but point out that Penn’s claims about the state of employment law in Philadelphia were just not true. While a few Courts of Appeals have issued binding decisions that limit the scope of Title VII, the Third Circuit (whose jurisdiction includes Philadelphia) is not one of them. Here, as in most of the country, whether anti-discrimination statutes referring to “sex” also encompass gender identity remains an unsettled legal question. In 2018, for example, the Third Circuit issued a ruling strongly suggesting that a school district would be liable for sex discrimination if it failed to provide its trans students with access to gender appropriate restrooms.
Last summer the Supreme Court signaled its intent to weigh in to this debate when it took up the case of Aimee Stephens, a trans woman fired from her job at a Michigan funeral home after she began living her life in a manner consistent with her gender identity. In oral arguments last month, Stephens argued that this was paradigmatic sex discrimination — after all, if not for the sex she was assigned at birth, the funeral home would not have terminated her employment. For its part, the funeral home disputed this framing, arguing that if Congress had wanted to bar gender identity discrimination, it should have written the law to explicitly say so.
The Supreme Court isn’t expected to issue its decision until sometime next year, and that makes Penn’s arguments all the more troubling. In such an unsettled area of the law, why was it acceptable to stake out such an extreme legal position? Penn likes to brag that it is training its law students to be at “the forefront of training students in creative problem-solving,” but we hadn’t realized that included positioning itself at the vanguard of the fight against LGBTQ rights.
But that’s almost beside the point. The law is not a mechanical enterprise, operating without regard for its effects on society. For in the words of this university’s motto, “laws without morals are useless.” Even if Penn had been legally correct when it argued that legal protections didn’t extend to transgender employees, that is not a moral justification for pursuing such a harmful litigation strategy. Arguments made in court filings aren’t just words on paper; if Penn’s position had been adopted by the court, it would have generated case law that directly harmed members of this university’s LGBTQ community. And even now that the motion has been withdrawn, non-cisgender students, faculty, and staff are left wondering just how deep the commitments of the “America’s Most LGBTQ Friendly School” actually run.
Withdrawing the motion was a good first step, but Penn can’t stop there. While attorneys are obligated to zealously advocate for their clients, those clients have every right to demand that certain defenses are not used. Penn failed to do so, and if this school wants to restore confidence that its professed values aren’t just empty promises, we need to understand how this happened and why.
SEAN BENDER is a second-year Carey Law School student from Washington, D.C. REBECCA WALLACE is a second-year Carey Law School student from Albuquerque, N.M. They can be contacted at firstname.lastname@example.org