IS THE CALIFORNIA UNRUH CIVIL RIGHTS ACT APPLICABLE TO RELIGIOUS INSTITUTIONS?

A Riverside County Superior Court judge has permitted transgender student Domaine Javier’s civil rights lawsuit against California Baptist University (CBU) to proceed after denying CBU’s motion to dismiss the complaint. The lawsuit was filed in response to CBU’s decision to expel Javier after school officials learned of Javier’s transgender status. CBU justified the expulsion as a response to Javier’s “fraud” in checking “female” to indicate gender on the application for admission to CBU.

Specifically, the lawsuit alleges a breach of contract between Javier and CBU, as well as violations of California’s Unruh Civil Rights Act, and argues that Javier has lost nearly a half-million dollars in scholarship funding and future wages as a result of the expulsion. CBU’s decision to expel Javier was reached only after Javier had publicly revealed her transgender status on television. Javier was asked to attend a private meeting at CBU, where she was expressly prevented from taking notes. There, Cal Baptist officials told Javier that they had discovered her appearance on an MTV “True Life” episode titled, “I’m Passing as Someone I’m Not” while Javier was undergoing a background check. Shortly thereafter, Javier received a letter by mail notifying her of her expulsion from CBU.

In a May ruling, the Riverside County Superior Court judge found that CBU was in fact subject to the California Unruh Civil Rights Act despite its religious affiliations, and that as a result the lawsuit should be allowed to proceed. CBU had argued that its right to religious affiliation precluded the lawsuit, namely because the school is a private Southern Baptist University where religious beliefs are an integral part of its mission. Nevertheless, the judge found that the lawsuit could proceed by virtue of the fact that CBU operates as a business establishment offering services to the public at a price, and as a result it is covered by the discrimination law. That said, even Javier’s attorney has conceded that “California must tolerate a truly private religious university’s discriminatory admissions policies.”

What rendered CBU perhaps less than 100% private was the fact that CBU “competes in the public marketplace to attract students regardless of their religious affiliation,” and participated in a government-backed, tax free bond-financing program, which allowed CBU to raise “over $100 million… and is seeking an additional $155 million, to construct educational facilities to be used exclusively in support of secular education.” Yet regardless of CBU’s status as a private or public entity, the question of whether Javier truly intended to defraud the university is likely to be answered in the negative. After all, having been given the option between “male” or ”female,” it is clear that neither choice would have been truly accurate, especially given that Javier has identified as a woman since at least the age of 13.

While the Riverside County Superior Court judge has yet to rule on the merits of the gender discrimination claims in the case, the ruling finding the law at least potentially applicable to CBU could have lasting implications for similar religious institutions across the country. The case seems to have focused on an issue that has to a large extent been sidelined in favor of gay marriage issues. Yet now a California court will address transgender issues, where no particular sexual behavior is at issue, and hopefully bring some certainty to an otherwise uncertain area of law.