By Bob Allen
A California judge ruled July 11 that a Baptist university was within its rights to expel a transgender student for violating the school’s moral code but went too far in barring her from university-controlled businesses and services that are open to the public.
Superior Court Judge Gloria Connor Trask ordered California Baptist University to pay 27-year-old Domaine Javier $4,000 in statutory damages plus attorney fees under the state’s Unruh Civil Rights Act.
The law — enacted in 1959 and named for its founder, Jesse Unruh, a prominent state politician who died in 1987 — bars businesses from discriminating on the basis of “sex, race, color, religion, ancestry, national origin, disability or medical condition.”
The California Supreme Court has extended protection beyond those classes to cover all arbitrary and intentional discrimination on the basis of personal characteristics “similar” to those named in the legislation.
Judge Trask said that for purposes of the Unruh Act, the on-campus educational activities at the California Baptist Southern Baptist Convention-affiliated school are not a “business” and therefore not subject to the anti-discrimination legislation.
At the same time, the judge continued, the university runs off-campus operations including a counseling center, library, art gallery and restaurants that are open to the public. Under the law, she said, those “ancillary business operations” are “business establishments,” so officials erred by excluding Javier from all university activities except public events like graduation.
Javier, identified in her lawsuit filed in February 2013 as a “male to female pre-operative transgender person,” checked “female” on her application to California Baptist University when she enrolled for the fall 2011 semester. After she appeared on an MTV reality show saying she was biologically male, university officials suspended and then expelled her for fraud.
Javier claimed in her lawsuit she did not intend to deceive anyone, because she had always identified herself as female. She said in a statement released by her lawyer that she was “thrilled” by Friday’s ruling.
“It’s such a huge victory for me personally and for other transgender people like me,” Javier said. “While the monetary award is small, it’s never been about the money for me. It’s about being treated fairly and standing up for what’s right.”
Javier’s attorney, Paul Southwick, called it “a great day for transgender Californians.”
“Today the court recognized that transgender people are not frauds and that any business that treats them that way is in violation of the state’s antidiscrimination statute,” said Southwick, who specializes in civil-rights cases representing LGBT clients.
The university’s attorney, James McDonald, told the Riverside Press-Enterprise that his clients were pleased the judge recognized “that California Baptist University is a private Christian university and is not a business establishment under the Unruh Act.”
“The court also ruled that the plaintiff did not have a valid breach-of-contract claim,” McDonald said.
The judge threw out Javier’s breach-of-contract claim for procedural reasons. California law allows for a process called a “Writ of Mandate” asking a court to require an organization to abide by its own rules and regulations but does not allow further legal action until that remedy is exhausted.
Judge Trask said Javier’s claim that the administrative hearing she received from Cal Baptist was unfair may or may not be valid, but lacking the proper petition, she cannot consider it.
Lawyers on both sides said they may appeal.
Southwick noted that the court “refused to recognize a Hobby Lobby-type exemption for the university, at least with respect to online courses and parts of the university that are open to the public, like its library, counseling center and campus restaurants.”
Javier’s co-counsel, Clifford Davidson, said the judge “recognized the truth” that “Domaine is not a ‘fraud.’”
“She is real, her feelings are real, and her gender is real,” Davidson said. “A business does not get to decide what gender is. California law makes that clear.”
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