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This is not legal advice, which can only be given by an attorney admitted to practice law in your jurisdiction after hearing all of the facts and circumstances in a particular case.

Tuesday, September 9, 2008

Religious Institution Accepts Transgender Professor

At Yeshiva University in New York City, an Orthodox Jewish institution (and my alma mater), a professor has transitioned from male to female and the story is in the news this week. The story began two years ago, when the award-winning Fulbright scholar-poet (who used to teach at Princeton), Joy Ladin, notified the school that she was planning to transition. She went on leave last year, and is returning this year for the first time as a female. While the school appeared initially to have been unsure what to do, the administration has now accepted her back without public comment. Teachers and students appear to be largely supportive. Below is a clip from a local television station, CW11, which asked me for an interview. (Click on the arrow on the bottom left of the video to play.)

The reference I made in the video to "gay students wanting to room together" is that of a situation involving a lesbian graduate student enrolled at Yeshiva University's Albert Einstein College of Medicine in NYC. She requested housing for herself and her partner of five years, but Yeshiva's policy only permitted non-student housing if a married couple, and at that time (the mid 90s), no U.S. state permitted same-sex marriage and New York State did not recognize same-sex marriages.

The student sued for discrimination under the New York City law. Yeshiva won the first round, when the trial court dismissed the complaint, before trial, on the grounds that the university policy did not create a disparity for lesbian students. The appeals court agreed, but New York's highest court reversed those decisions, saying that it might have created a disparate impact on gay students, and sent the case back to the trial court for a trial.

It's hard to tell what happened after that, as the case seems to have dropped from public view afterwards. However, knowing the law as I do, I imagine both sides were war-weary and drained of resources and happy to let the matter drop. My guess on the legal fees for Yeshiva is in the $100,000-$250,000 range. The case generated lots of press for Yeshiva, but not the good kind. Meanwhile, the plaintiffs were represented by the ACLU, and so incurred little monetary cost, although I imagine the emotional toll was high. I also surmise that Yeshiva does not want to go through a similar experience with Professor Levin. Despite what religious ideologues may say, sometimes discretion is the better part of valor.

It is the way of television to talk in snippets, and although I gave many stirring quotes about freedom, civil rights and the role of religion, they now lie discarded on the cutting room floor. (Do they still do that in the digital age?) Ah well. The story was well done, so I have no complaints.

Stories in the News and the Blogosphere

There are stories in the New York Post, and the Chronicle of Higher Education.

The blogosphere has exploded with the story. The Jewish blog community is divided on the question. There are positive comments (DovBear Jewneric, Hirhurim, Jewschool) and negative comments (Vosisneias and The Yeshiva World). Dozens more here.

Jewish Community Resources on Transgender Issues

Of note in the Jewish community are Reuben Zellman, a transgender rabbinical student at Hebrew Union College and Rabbi Levi Alter, a transgender rabbi who has a congregation in San Francisco. There is also a listserv for transgender Orthodox Jews with dozens of participants. Reform Judaism has created blessings to be said upon sex reassignment surgery. Jvoices regularly has posts on transgender issues.

There are also some Jewish blogs that have looked at the issue of gender transition from the point of view of Orthodox legal principles, and though there are a lot of Hebrew and Aramaic Talmudic terms sprinkled about, it gives a useful insight into the real issues in Orthodox Judaism beyond the prejudice spouted in the NY Post article. Using careful logic (which is nonetheless hampered by an apparent lack of understanding of biological principles underlying gender), it allows some room for the idea that gender reassignment may, in fact, accomplish a change of gender according to Jewish law. Read it in Sfas ha Nachal

There is also some interesting information about transgender issues in Judaism in the more reform-minded website TransTorah.

Larger Issue of Religious Opt-Out

There is a larger issue here, and that is the question of religious opt-out of anti-discrimination laws. That has been discussed in detail here, as it came up in an issue last year regarding another religious university, Spring Arbor University in Michigan. I discussed in detail the "BFOQ defense", which exempts certain religious institutions from federal EEO law. The "Bona Fide Occupational Qualification" defense lifts EEO requirements in certain circumstances. However, those circumstances were probably not satisfied in the Spring Arbor case, and Spring Arbor settled the lawsuit that ensued after they fired the professor, probably for a hefty sum.

According to a quote from Mara Keisling, executive Director of NCTE, this is the only religious university in the US that is now employing a transgender person.

The BFOQ is also probably not applicable in the Yeshiva situation. The BFOQ is also intimately connected to another religious freedom principle, the First Amendment of the US Constitution. That is also probably not applicable here. That's also discussed in the prior posts.


Meanwhile, Joy Ladin quietly goes about her business - writing poetry and teaching students about the joys of English. You can see some of her poetry here.

I don't think this is the end of the story. There are many ways for an employer to come up with a facially non-discriminatory reason to fire someone. It might be a precipitous decline in student enrollment in classes. It might be some negative comments from students. It might be mis-interpretation of a thoughtless statement made in class. It might be a reaction to protest at an 8am overload schedule of classes every day of the week, or assignment to only remedial reading classes. It might be complaints from students and staff about feeling harrassed or upset by her presence, voice, or clothing. It might be an issue about which bathroom to use. Time will tell.

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