Penn says federal discrimination law doesn’t protect their trans workers, court papers show

In a move directly related to a major case under consideration by the U.S. Supreme Court, the University of Pennsylvania claimed in court paperwork this month that federal anti-discrimination laws don’t protect its transgender workers.

The assertion, made by the Ivy League school and its eponymous hospital, was in response to a lawsuit filed by an anonymous former hospital employee who claims, among other grievances, that she was subjected to “transphobic hatred” and wrongfully fired in June 2018.

The plaintiff, identified only as Jane Doe, claimed she was mistreated by hospital staff while a patient and was then terminated after the hospital failed to make accommodations related to her return to work. Further details about Doe’s identity or position at the hospital were not included in the lawsuit.

Penn officials declined to comment on the pending litigation, saying only that "respect for all our patients is a cornerstone of care across Penn Medicine, and we value and support diversity among both our patients and our workforce.”

Penn and the hospital contend that though Title VII of the 1964 Civil Rights Act protects employees from discrimination “on the basis of sex,” the protection does not extend to gay and transgender workers — at least, they say, in the Third Circuit, the appellate federal court that covers Pennsylvania, New Jersey, and Delaware.

In the court filings, first reported by the Philadelphia Gay News, attorneys for the university cited a 2015 case filed by a transgender man who sued the University of Pittsburgh, claiming he was kept from using a male locker room in violation of civil rights law. The case was settled, but the judge noted in the case that the Third Circuit has not addressed whether Title VII protects trans individuals.

In time, though, the Supreme Court will.

The high court last month heard oral arguments in three cases considered to be among the most consequential of the year. Each case asks whether federal statutes that ban discrimination “on the basis of sex” extend to gay or transgender employees. One case deals specifically with a transgender worker, Aimee Stephens, who was fired from a Michigan funeral home after coming out.

» READ MORE: Is it legal to fire a person for being gay in Pennsylvania? The Supreme Court will decide.

With the assistance of the ACLU, Stephens filed a discrimination claim with the Equal Employment Opportunity Commission. The EEOC then sued the funeral home, and the Sixth Circuit Court of Appeals ruled in Stephens’ favor, finding the employer violated Title VII in terminating her employment.

Defendants in the cases before the Supreme Court argue that sexual orientation and gender identity aren’t subsets of sex, meaning they aren’t protected classes. The Supreme Court held decades ago that Title VII does protect employees from being discriminated against based on “gender stereotyping,” meaning a person can’t be fired for failing to conform to societal expectations related to gender presentation.

Experts say it could be spring or summer before the court rules on the cases.

While it’s unclear what the justices will decide in establishing the federal standards, Pennsylvania’s Human Relations Act also says only that a person can’t be discriminated against on the basis of sex. State courts haven’t determined whether that applies to sexual orientation or gender identity.

However, more than 50 municipalities, including Philadelphia and Pittsburgh, recognize sexual orientation and gender identity as protected classes. Those statutes are enforced by local government; Doe’s lawsuit was filed in federal court.

Julie Chovanes, a Philadelphia-based attorney representing the plaintiff in the Penn case, declined to comment on the hospital’s stance related to Title VII. She said though that while Philadelphia “is the best city in the world for trans people,” the incident involving her client “shows things are going backwards, not forwards.”

“It’s really sad,” Chovanes said, “that the poorest and most disadvantaged in our society are now experiencing the greatest violence and hatred just because of who they are.”

The judge hasn’t yet ruled on the hospital’s request to dismiss the lawsuit.