Last week, Penn argued in court documents that transgender individuals are not protected from workplace discrimination under a federal act. Now, Penn is retracting its argument, saying Penn does not tolerate discrimination.
The lawyers' latest arguments were filed on Wednesday in court proceedings for a lawsuit submitted on July 2. In the suit, the plaintiff, "Jane Doe," who was a former Hospital of the University of Pennsylvania employee, alleges that the hospital discriminated against her when it terminated her contract in late June — on the basis that she identifies as transgender.
On Nov. 7, Penn's lawyers asked the court to dismiss a claim in the lawsuit that Penn violated Title VII of the 1964 Civil Rights Act, which protects employees from sex discrimination, arguing that "Title VII does not cover transgender employees."
On Nov. 13, Penn's lawyers retracted their earlier statement, instead arguing that Penn's protections do offer full protection of transgender patients and employees.
"Regardless of the outcome of the pending United States Supreme Court case addressing the scope of protection afforded by current federal law, the Penn Defendants remain fully committed to affording the full measure of protection under their policies to our transgender patients and employees," the lawyers wrote to the court.
These court filings come a month after the Supreme Court heard arguments on whether LGBTQ individuals will be protected under Title VII. The Supreme Court will be making its decision between February and June 2020.
In the argument it retracted Wednesday, Penn wrote that while the Supreme Court is deciding on whether Title VII covered transgender employees, a previous court decision in the Third Circuit, which included Pennsylvania, said the court has yet to decide whether transgender employees fall under the federal act. Therefore, the lawyers concluded, Title VII does not protect transgender employees in Pennsylvania.
Doe claims she was mistreated after a routine medical procedure at HUP on Feb. 20, 2018. After the event, she claims she had difficulty returning to work because the hospital exacerbated her gender dysphoria, which is distress felt as a result of conflict between biological sex and gender identity. Four months later, HUP fired her, according to the lawsuit.
“The University of Pennsylvania and Penn Medicine are proud of their strong institutional commitment to civil rights, which includes longstanding policies of non-discrimination with respect to sex, sexual orientation, and gender identity, as well as providing medical benefit coverage to transitioning students, faculty, and staff," according to an emailed statement from Penn Medicine Vice President for Public Affairs Patrick Norton to The Daily Pennsylvanian.
"We have amended our legal filing to make clear that we do not tolerate discrimination on any basis, including gender identity. The plaintiff’s complaint alleges conduct that is at odds with our policies and our values, and we intend to demonstrate that those allegations are without merit," he added.
Justin Robinette, an associate attorney at the Law Offices of Eric A. Shore, P.C., said Penn likely made its initial arguments in an effort to poke holes in the defendant's claims. However, he said Penn does have a commitment to LGBTQ rights.
“Penn made a mistake and they’re correcting that mistake, and that’s a good thing. I think they bowed to pressure, and you have to ask the question, ’Why would Penn take this position originally? If they are fully LGBT-inclusive and they care about LGBT students, faculty, staff, why take this position in the first place?’” said Robinette, who is not involved with the case.
Despite the retraction, Robinette said Penn is still taking an "anti-trans" stance by asking the court to dismiss claims that gender dysphoria is covered under the American with Disabilities Act.
“Penn is still pursuing dismissal of the ADA claims. They’ve stepped back on the Title VII claims, but they are looking still to dismiss the ADA claims," he said. "The ADA is an important protection for the larger community, for people with disabilities. That might include transgender people who have GD, so this is an anti-LGBT stance.”
Staff Reporter Daniel Wang contributed reporting.