Hot Docs: Transgender woman did not commit “fraud” by identifying as female, lawsuit claims

March 7, 2013

College transgenderBlack’s Law Dictionary defines “fraud” as a “knowing misrepresentation of the truth or concealment of a material fact to induce another to act to his or her detriment.”

A recently filed complaint alleges that the term was misapplied to the plaintiff, Domaine Javier, and, as a result, she suffered a variety of damages.

The suit is directed against California Baptist University (CBU), a Christian college based in California and affiliated with the Southern Baptist Convention.

According to the complaint, CBU accused Javier of “committing or attempting to engage in fraud, or concealing identity,” and consequently expelled her from the school.

Javier had applied to CBU in February 2011, and, on June 10, 2011, CBU notified Javier by letter that she had been accepted “with honors at entrance” for the fall 2011 semester.

Javier had also received an academic scholarship in the amount of $3,500, and an additional choir scholarship in the amount of $2,000 after auditioning for and being accepted into the CBU woman’s chorus.

The “fraud” alleged by CBU and cited as the reason for Javier’s expulsion occurred in Javier’s admissions application: she stated that her “gender” was “female.”

Javier is a transgender individual; she is genetically and biologically male, but identifies as female.  She has “viewed herself as female for as long as she can remember and has presented herself as female since she was a child” (staff at CBU apparently discovered this fact after seeing this episode of MTV’s True Life, on which Javier starred).

Because of CBU’s actions, Javier alleges that she has had to pay more for another college (from which she did not receive a scholarship), has had to delay her pursuit of becoming a nurse for over a year, and has “suffered…and continues to suffer humiliation and emotional distress.”

Hot Doc: Cabading v. California Baptist Univ.

Source: Thomson Reuters News & Insight – National Litigation

Legally, how does this lawsuit look?

There are two principal causes of action the complaint relies on: breach of contract/covenant of good faith and fair dealing, and violation of California’s Unruh Civil Rights Act.

The breach of contract/breach of covenant of good faith and fair dealing claims are pretty solid.

On breach of contract, it’s a widely acknowledged rule that, once a college has made an offer of admission to a prospective student, and that student thereafter accepted, a contract has been formed.

According to the complaint, Javier obeyed every obligation imposed on her by the school’s policies and procedures – which notably were silent on any “issues of gender identity, gender expression, or transgender persons.”

If Javier was actually fraudulent, however, there is no breach of contract.  Fortunately for Javier, a reasonable court should find that no fraud occurred.

Although the two terms are often used interchangeably, there is actually a distinction between “sex” and “gender.”

“Sex” refers to the biological and physical characteristics that define male and females.  “Gender” refers to the socially constructed attributes that a given society considers appropriate for men and women.

So while Javier’s “sex” is undoubtedly “male,” her gender is unquestionably “female.”

And, even if a court construes “gender” as meaning “sex,” there was still no fraud, since, an essential element of fraud is the “knowing” element, and there is more than enough evidence to support the notion that Javier truly believes that her “gender” is “female,” and that she was being completely honest when answering that question on CBU’s admissions paperwork.

I’m not terribly optimistic on CBU’s chances on these claims, but they will likely be able to avoid future such incidences if they actually address the issue of gender identity somewhere in their admissions paperwork.

On the other hand, I’m not particularly confident in the strength of Javier’s claims under the Unruh Civil Rights Act.

Although the broad language (and subsequent court interpretations) of the act outlaws essentially any kind of sexual or gender discrimination conceivable by “all business establishments of every kind whatsoever,” a 2009 California court of appeals ruling presents a big obstacle to Javier’s claims.

That case, Doe v. California Lutheran High School Ass’n, involved two female students expelled from a private school for having a romantic relationship.  The court found that a private religious school’s admissions and disciplinary practices don’t fall within the definition of “business” under the act.

In Javier’s case, the decision to discriminate against her (assuming that she can show that it was based on her transgender status, not because of a “fraud”) was completely an admissions decision by a private religious school, and is thus exempt from Unruh under Doe.

But while Javier’s Unruh claims likely won’t survive a motion to dismiss, a judge with any understanding of the gender identity of transgender individuals should understand that Javier committed no fraud in the course of her admissions application to CBU, and her breach of contract/covenant of good faith claims should survive.