Unitarian Universalists focus on trans issues

uuworld.org : new lgbt coordinator will emphasize trans issues: "Delfin Bautista, the new program coordinator for the Unitarian Universalist Association’s Lesbian, Gay, Bisexual, and Transgender Ministries program, says that he will be paying special attention to transgender-related issues in his new position. “The UUA has done incredible work on gay and lesbian issues,” he said. “Now it’s time to give attention to the trans community while also upholding all of the other identities represented by the LGBT acronym.”

Bautista, who identifies as transgender, started the job at the end of November. In the new position he will be responsible for the development of LGBT programs and resources and will also be engaged in advocacy efforts on issues such as “Don’t Ask, Don’t Tell,” marriage equality, and the Employment Non-Discrimination Act."

Why the Claim of Religious Discrimination is the Next Big Battle in LGBT Rights

I think this is a very important issue. I am currently researching this issue in preparation for presenting at a symposium at Florida Coastal Law School in March, and writing a law review article this summer. The question in my mind, from a legal point of view, is how to respond to the argument that race and sexual orientation are not equivalent from a legal standpoint. The Supreme Court's jurisprudence does address them differently, though perhaps it shouldn't, but tell that to the Supreme Court. Also, the Court's freedom of expression and association doctrines permitted discrimination against gays in the NYC St. Patrick's Day case and the Boy Scouts case. So how does one argue persuasively that the law cannot permit discrimination against gays, when the Supreme Court has said it does in those two situations. Other than the non-legal argument of "it's not fair?", which would go nowhere in front of the Supremes.
Read the Article at HuffingtonPost

Religious Freedom and LGBT Employment Non-Discrimination

The issue of religious freedom is one of the major issues swirling around the Employment Non-Discrimination Act. If my religion requires me to shun homosexuals, is my religious freedom being impacted if the law requires me not to?

The Supreme Court has answered in favor of the religious discrimination argument on two occasions. Significantly, these were not in the workplace context, and I believe that context would call for a different analysis and a different answer. These well-known examples are Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557, 557 (1995), and Boy Scouts of America v. Dale, 530 U.S. 640 (2000). In these cases, the organizations in question denied participation by gay persons, who sued under non-discrimination statutes. The Court denied their claims, saying that the First Amendment right to freedom of association trumps the right of a legislative body to outlaw discrimination. The Religious Freedom Restoration Act, passed in 1993, may also come into play, though the Supreme Court has held it unconstitutional as applied to the states in City of Boerne v. Flores, 521 U.S. 507 (1997).

The issue, and legislation pending on religious workplace discrimination that may affect this issue, is discussed in a post this week on the blog "Jottings By An Employer's Lawyer."

Arguments Against ENDA (Part II)

One of the major arguments against ENDA is a concern that the government is infringing the right to practice religion. Fortunately, ENDA does not prohibit any religious beliefs or expressions protected by the First Amendment. However, that will not stop the concerns that people have. Today we will take at look at religious arguments against ENDA.

Religious opponents of ENDA are using the "reverse-discrimination" argument. The suggestion here is that ENDA will force churches and religious schools who have religious objections to hire lesbians, gays, bisexuals and transgenders.

In addition, the argument is that by forbidding religious employers from dismissing LGBT workers from their jobs, they are being prohibited from practicing their religion. Furthermore, these opponents say that ENDA will call for the firing of any employees who disapprove of homosexuality and prohibit any religious symbols in the workplace, such as the Bible, because the religion they symbolize condemns homosexuality. These arguments are incorrect. They can be rebutted effectively. But they are tricky, because the line between religious freedom and religious intolerance has always been a slippery one.

There are a lot of intertwined arguments here, and the law with regard to the First Amendment's freedom of religion is particularly thorny. Let's take them one at a time.

"Religious Schools, Camps And Other Religious Organizations Will Be Forced To Embrace Homosexuals Or Be Liable And Lose Tax-Exempt Status."

The Christian Post recently filed an article that implies that ENDA will require churches to hire gay employees.

If ENDA is passed, church-related organizations and facilities can lose their tax-exempt status if they refuse to hire a gay employee, Deo of the New Jersey Family Policy Council warned.

He pointed to a case in 2007 when a New Jersey Methodist-owned camp facility refused to allow a gay couple to use one of their buildings for a civil union ceremony. The result of a court battle was the church losing its tax-exempt status for the beachfront property.

"This bill will put para-church organizations and people of faith who own secular, for-profit businesses in jeopardy of liability if they hire or fire based on their religious beliefs or moral convictions about homosexual behavior," said Ashley Horne, federal policy analyst for Focus on the Family Action on Friday. "This is yet another attack on religious liberty in a long string and must be stopped."

From a legal standpoint, that would indeed be troubling, if it were true that churches would be forced to hire people in their religious places of worship against their religious beliefs. While I want to end rampant discrimination against LGBT people, I also believe in religious freedom. That means people must be allowed to believe doctrines whether I like them or not, and to worship and to teach and to hire ministers as they see fit.

However, Mr. Deo's representations as to the facts of the case are far from complete, and involve a very different situation from that of ENDA. The Methodist-owned "camp" was not a haven for religious young campers, but the "Ocean Grove Camp Meeting Association," which is neither a camp nor a church. Rather, it is an organization run by Methodists that owns all of the land in Ocean Grove, New Jersey, most of which is used for homes, stores, restaurants, hotels, and beach boardwalks. The Association made the beach, the boardwalk, and the boardwalk pavilion into public access property. Many weddings were held in the pavilion. When a gay couple wished to have a commitment ceremony in the wedding hall, the Association refused to accommodate them.

This is very different from the employment situations contemplated by ENDA. Unlike the public accommodations section of the New Jersey Law Against Discrimination, which has no exemption for religious organizations, ENDA has specific provisions detailing exemptions for churches and religious educational institutions.

It should also be noted that, although the Association initially lost its tax exemption, the State of New Jersey reinstated the Association's exemption from property tax for the beach and the rest of the boardwalk, but stated that it could not continue to exempt the pavilion as it was not truly open to the public.

Box Turtle Bulletin has the full story.

ENDA Does Not Apply To Religions Organizations Exempt Under Title VII

ENDA specifically notes that it does not apply to a religious organization exempt under the religious discrimination provisions of Title VII, the current federal employment non-discrimination law. Such organizations are allowed to discriminate on the basis of religion, and ENDA would not affect them. A religious organization, such as a church, and a religious educational institution, such as a school or camp, is permitted to discriminate on the basis of religion for any employee.

What constitutes a religious educational institution that is exempt from religious discrimination under ENDA? According to the statute, it is exempt if it is owned, supported, controlled, or managed by a particular religion or religious organization, in whole or in part. That's quite broad, because it means that, so long as the religious organization plays a part in the institution, it is exempt. Additionally, even if a religious organization plays no part in the institution, the institution will nonetheless be exempt if its curriculum is directed toward the propagation of a particular religion. That is very broad protection for religious schools, camps and other educational institutions.

Congressman Bill Young Suggests That Religious Exemptions Cause Problems

Strangely enough, Representative Bill Young argues that this generous exemption clause is dangerous, because it means that the government will start investigating religious educational institutions.

From: Congressman Bill Young
Sent: Wednesday, July 8, 2009 4:54:50 PM
Subject: Re: Please Co-Sponsor the Employment Non-Discrimination Act

July 8, 2009

...ENDA did not provide adequate exemptions for religious organizations, which could have resulted in limitations on the hiring prerogatives of non-denominational religious schools. ENDA did provide exemptions for the armed forces and for religious organizations. The definition of religious organization, however, was limited to educational institutions that are at least substantially controlled, managed, owned, or supported by a particular religion or use a curriculum that is directed toward the propagation of a particular religion. This narrow definition still failed to cover non-denominational religious schools and invited the federal government to investigate the religious nature of schools' curricula.

With all due respect to Congressman Young, his argument is of the disingenuous "heads I win, tails you lose" variety. The exemption for religious schools that he cites is not "narrow." It exempts any school or camp that is religiously affiliated, and I am unsure how such a definition could be made any broader. He is arguing that schools can never be the subject of anti-discrimination law because any religious exemption for schools could require someone at some point to look and see whether an educational institution is religiously affiliated. He's pointing and shouting "get your government hands off my religion!!" while the government has its hands in its lap.

Congressman Young's argument is an argument against any law applying to a religious school, not an argument against ENDA. Would he say that a requirement that a religious school have an educationally sound curriculum is a violation of religious freedom, because the government might have to take a peek at the school's curriculum? Sounds like he is arguing yes.

Would he say that the religious exemption in Title VII, the current federal anti-discrimination statute, is a violation of religious freedom? Sounds like he is arguing yes.

The religious exemption in ENDA that he so despises is exactly the same as the religious exemption in Title VII.

It makes eminent sense to exempt religious schools that have a sincere belief that homosexuality is wrong from the requirement of hiring gay employees. At the same time, schools that are not part of a religious organization or religious propagation should not have a pass when it comes to anti-discrimination law.

Such determinations are routinely made now. Some schools are now exempted from government requirements because of their religious nature. That is not a violation of religious freedom. And if that is not a violation of religious freedom, neither is ENDA.

ENDA Exempts Jobs With A Bona Fide Occupational Qualification

There is an exception in Title VII and ENDA even for private employers, and this shows the lengths to which these non-discrimination laws try to accommodate a private non-church employer involved in religious commerce.

If it is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise, then the employer may restrict its hiring to religious believers.

For example, if I'm hiring someone to sell Bibles, I can restrict my hiring to those who believe as I do. If I'm hiring a construction worker, then I need to look at her skills, not her sex or her sexual orientation.

Thus, any employer, even if it is not itself a church or a religious educational institution, can restrict its hiring to those who have certain beliefs for those jobs that require such beliefs.

There is a very large degree of religious freedom built into ENDA.

But some people will not be happy no matter what.

It's Against My Religion To Hire Those People

One of the major arguments of ENDA's opponents is that employers, which are owned or managed by religious people whose religion prohibits homosexuality, should be permitted to shun LGBT employees.

The Christian Post said of ENDA:

...its opponents argue that it is in fact religious employers who disagree with the homosexual lifestyle that are being discriminated against.

Ashley Horne, federal policy analyst for Focus on the Family Action, said ENDA's passage would threaten religious freedoms. "Gay rights activists have wanted this bill for a long time," she said, "to keep religious employers from being able to hire and fire based on their moral convictions."

The American Family Association is saying that ENDA "turns private sin into a public right."

"It takes away the idea that sex is created by God in two different categories -- male and female -- and it makes it entirely a radical, self-determined persona. The larger problem of this is it turns private sin into a public right," he contends. "It puts Christian and Jewish employers on the defensive, saying that if you don't give in and accord civil-rights privileges based on behavior that you know is sinful, 'We're coming after you. We're going to fine you. We're going to punish you.'"

According to Knight, the bill "criminalizes God's biblical morality in the workplace."

The question here is whether, in a democracy, the majority can decide that shunning an entire group of people and making them unemployable is a social problem requiring redress. The answer here is yes, that in a democracy in the 21st century, in supposedly the leader of the free world and the most enlightened country in the world that is vigorously exporting its values to the rest of the world, it is a social problem for a large group of people to be the subject of open employment discrimination. Of course the people doing the shunning are going to object. It is a rejection of their values, and they are not going to like it. I wouldn't expect them to like it. That's the point of the law. That's why the "anti-shunning" law is needed in the first place.

But here, the shunners are wrapping their values in the cloth of religious faith, loudly proclaiming that God wants them to shun this group, and pointing to the First Amendment as their justification.

Our Constitution strikes a balance between religion and the state. The state must stay out of religion. But when my religion intrudes into the marketplace, into the public square, that is a different matter. When I, as a private person and not as a church, decide to enter the public marketplace as a secular employer, then my behavior needs to conform to certain requirements. I can't start sacrificing goats in the public square, and protesting that it's my religion. I can't start hitting certain people I don't like over the head with a rubber chicken and saying God requires it, so hands off.

If the legislature decides that shunning of certain kinds of people creates a social problem within its competence to redress, and people want to put themselves out in the public marketplace as secular employers, it has not heretofore been considered a good excuse that one's religion requires shunning those people. Shun, shun, shun!

The "it's against my religion to hire these people" argument has been tried before, and the courts have soundly rejected it in the context of other forms of discrimination. There are some who are going to argue that they don't want to hire LGBT people, not because they are a church or have a bona fide occupational qualification, but because "it's against my religion" and I only want to hire people who are like me.

This question was dispositively disposed of after the passage of the Civil Rights Act of 1964. The state has the right to prohibit discrimination based on religion, and it is not a violation of the First Amendment freedom of religion to do so. Under Title VII, I do not have a right to discriminate against Muslims because I am a Hindu. I do not have a right to say "you can't work here because I only want to hire Jews." I do not have the right to demote you because you decided to change your observance of the Sabbath from Sunday to Saturday, or because I saw you eating a ham sandwich that violates my religion, or because you wear a religious garb that's different from my religious garb.

This issue is little different from those who argued that their extremist views required discrimination based on race. As the US Supreme Court said in Runyon v. McCrary (1976), there is a First Amendment right to believe in discrimination.

But it does not follow that the practice of excluding racial minorities from such institutions is also protected by the same principle. As the Court stated in Norwood v. Harrison, "the Constitution . . . places no value on discrimination," and while "[i]nvidious private discrimination may be characterized as a form of exercising freedom of association protected by the First Amendment . . . it has never been accorded affirmative constitutional protections...

Employers Will Be Forced To Punish Employees Who Disagree With Homosexuality

This argument concerns another facet of the workplace environment: creation of a hostile environment. In the early years of the Civil Rights Act of 1964, after employers were forced to hire people of races, sexes and religions that they used to shun, the co-workers often made life hell for those new employees. When the employees brought this harassment to the attention of employers, those employers shrugged their shoulders and said "what can I do?" This required a new dimension of non-discrimination law: the hostile environment claim.

When ENDA passes, employers will be required to respond to harassment of gay employees. Thus, not only will employers be required to hire LGBT people, they will also be required to protect them from harassment. To the extent that harassment is religiously motivated, then employers with religious beliefs against homosexuality may indeed find themselves in a position where they are forced to punish harassers who believe as they do.

Opponents of ENDA object because they believe that anti-gay harassment is protected as an expression of religion.

Focus on the Family sent a letter to Congress that says, among other things, "What will happen when homosexual or "transgender" employees object to: religious articles on employees' desks; water cooler discussions about biblical morality; Bible verses taped to cubicle walls; fliers on company bulletin boards advertising discussions concerning traditional marriage? This is already happening in states and municipalities with ENDAtype laws and many of these cases are in litigation."

Americans For Truth About Homosexuality have written about an actress who was fired because of her religious beliefs against homosexuality.

Actress Patricia Mauceri says she was fired and abruptly replaced for objecting to a gay storyline because of her religious beliefs.
...
Mauceri, 59, a devout Christian, told FOX News that character Vega's gay-friendly dialogue was not in line with the character she helped create by drawing on her own faith.
...
Mauceri said she was replaced despite offering changes to the script and hoping for a compromise.

It is true that employers will be required to take action against harassers, regardless of whether their motivation is religious or not. There is, however, a clear line between belief and harassment. No one is going to take away your Bible. But you can't hit me over the head with it, either.

ENDA cannot tell anyone what to believe, nor can employers. At the same time, gay employees have the right to live free from harassment on the job. In fact, it is now the law and has been since 1964 that people of all religions and walks of life have the right to be free from harassment on the job based on religion.

Co-workers who want to march up to you and say "You are going to hell to burn in the eternal lake of fire!" are not be free to do so. Will this prohibit a private employer from having a Christmas tree, because some Christian sects condemn homosexuals? No. Will it prohibit a co-worker from saying "I'm a Christian."? No. But it will prohibit an attack on someone whether that attack is religiously motivated or not.

Anti-gay harassment is not an issue of freedom of religion.

"Unlike Other Protected Classes, Like Race And Religion, Sexual Orientation Is A Behavior!"

The most illogical argument against ENDA is the idea that sexual orientation and gender identity are not worthy of legislative protection because they are unlike the other currently protected categories: race, sex, national origin and religion. The attempt is made to distinguish sexual orientation and gender identity from these. The claim is that the current federal law protects identities, not behaviors.

For example, the Christian Post said of ENDA:

"It's just a very dangerous situation when we start passing laws based on people's behaviors," said Len Deo, president of the New Jersey Family Policy Council, to Focus on the Family's CitizenLink.
...
Bishop Harry R. Jackson, Jr., a church leader from the Washington, D.C., area, argues "sexual orientation" should not be included in the federally protected class list because unlike the other characteristics, a person's sexual orientation can change.

"I find it is an insult for myself as an African American that you are granting through this law special protection for sexual orientation that might only be imagined," said the senior pastor of the 3,000-member Hope Christian Church, during a press conference opposing ENDA.

That's not a logical argument. Religion is a currently protected class, and it can change any time. It is not something inborn. It is acquired, and it is a belief system that requires certain behaviors, and yet it is protected from discrimination by federal law. It is impossible to justify the idea that sexual orientation and gender identity are entitled to less protection than religion because the former involves behaviors but the latter does not.

And yet, we see this argument coming from the mouths of Congressmembers.

From Pam's House Blend:

Blender Stevious attended a town hall meeting held at IBM in Austin by Congressman John Carter (R-TX-31), and the topic of the pol's no vote on ENDA. The answer that Carter gave can be summed up as sexual orientation isn't an "attribute" deserving of anti-discrimination protections.

The bottom line of this long discussion is that ENDA does not violate freedom of religion. It prohibits employment discrimination against LGBT people, but does not stop anyone from believing anything they like about being lesbian, gay, bisexual or transgender.

What it does is to give LGBT people the right to have a job.

This should not be a controversial point in a country that promotes the value of work and the importance of a healthy economy

Click here to see Part I of this series, in which we took a look at the arguments that "sexual orientation" is cover for pedophilia, and saw that it was, in actuality, a cover for the confusion that some people have regarding the meaning of the well-defined term "sexual orientation."

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...

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.

Fired transgender prof, Christian school settle dispute

Looks like the Nemecek case is over. Thanks to Paul Secunda of Workplace Prof Blog for the tip.

LANSING, Mich. (AP) — A transgender professor who was fired by a Christian school has reached a settlement in her sex discrimination complaint.
Julie Nemecek and Spring Arbor University agreed to the deal Monday after mediation talks with the U.S. Equal Employment Opportunity Commission. Terms of the settlement were not released, though Nemecek said Tuesday she will no longer be employed by the school outside Jackson, about 75 miles west of Detroit.
"It was a lengthy process and both sides are happy," said Nemecek, a married man who recently changed her name from John. "I'm looking for other employment. I may do some consulting work. I'm definitely going to do advocacy for transgender issues. I won't give up that fight."

I'm glad to hear that Prof. Nemecek was able to work out a satisfactory settlement. Litigation is bad news unless you just have no other choice. Though I would have dearly loved to see what a court would say on that BFOQ issue. Ah well.

Wall Street Journal Weighs in on Nemecek case

The Wall Street Journal published an article about Julie Nemecek's case yesterday, about which I have previously blogged at http://jweissdiary.blogspot.com/2007/02/university-firing-transgender-prof.html. I'm glad they did, but I feel that they portrayed the legal issues in a slightly misleading way. They glammed it up by announcing a clash of two constitutional principles.

"Prof. Nemecek is contesting the dismissal under federal discrimination laws, presenting a test in a growing clash between religious and employee rights. The case is the latest of a number of conflicts pitting two constitutional principles against each other: the freedom of religious organizations to operate without government intrusion versus the rights of workers to be free of discrimination based on race, religion, sex or nationality."

But there is no clash of constitutional principles here. The issue is whether Dr. Nemecek's private employer violated a statutory duty not to discriminate in employment based on sex and disability. Other than a statutory duty, there is no constitutional right to be free of discrimination in employment. (I note that if you work for a public employer, there are constitutional protections, such as the right to "equal protection" and "due process of law," that may come into play. But that is not the situation with Dr. Nemecek.) Thus, Dr. Nemecek cannot raise a constitutional issue here.

Her employer, Spring Arbor University, on the other hand, has a constitutional issue it can discuss: the First Amendment, which states that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof..." To the extent that Title VII, as a Congressional law, involves an establishment of religion or prohibits free exercise of religion, it is unconstitutional.

In addition to the religious freedom issue, Spring Arbor may also have an "associational" right from the First Amendment that Title VII potentially violates. Thanks to Paul Secunda of the Workplace Prof Blog for reminding me of this. That argument comes from the Dale v. Boys Scouts of America case, in which Dale was removed as a scoutmaster after coming out as gay. He claimed that the New Jersey Law Against Discrimination prohibited discrimination on the basis of sexual orientation. The U.S. Supreme Court said that the New Jersey law violated the First Amendment right of association of the Boy Scouts, and rejected Dale's claim. They said, in a nutshell, that an organization that has a principle of including only certain groups or excluding others, as part of its basic purpose, cannot be forced by non-discrimination statutes to do otherwise, if it would materially interfere with its basic purpose. I think this would be a tough argument to make in an educational institution setting, but there it is.

Now, Congress included exceptions for religious institutions in 42 USC 2000e-2(e), and this may (or may not) circumvent the problem. But the employer's First Amendment right is not clashing with any other constitutional provision. There's a lot more that could be said on the subject. I'm sure we'll come back to it later

University firing transgender prof

From Michigan comes the story of Professor Julie Marie Nemecek, who has been fired from her university post as assistant dean of adult studies and Associate Professor at Spring Arbor University. The University is firing the professor because she is transitioning from male to female. She has filed a complaint with the EEOC.

In response to the EEOC complaint, the university cites its Bona Fide Occupational Qualification (BFOQ) that legally allows hiring only Christian employees. "We expect our faculty to model Christian character as an example for our students," read a university statement issued by a public-relations firm. Faculty who "persist with activities that are inconsistent with the Christian faith" are subject to firing. College officials said the Christian mandate is critical to the university and is protected by state and federal civil-rights laws.

Nemecek’s attorney, the redoubtable Randi Barnabee, argues that, to the contrary, Spring Arbor's main focus is education. It admits students of any faith, not all of its faculty is Christian, and it is a recipient of state and federal funds that prevent discrimination based on gender. "You cannot discriminate under the guise of religious freedom," Barnabee said. Barnabee is the one who won the Smith v. City of Salem decision in the Sixth Circuit, which found that Title VII sex discrimination includes transgender employees.

In all our talk of Title VII, sex discrimination, and transgender employees, we have not yet addressed the fact that Title VII, by its own terms, has different rules when it comes to religion. The structure of Title VII on this point is confusing, and the poorly drafted amendments of 1972 and the addition of First Amendment issues by the courts make it worse. Legal scholars have largely ignored this quagmire. There is one recent article of use specifically on the subject of the Title VII exception for religious educational institutions: Jamie Darin Prenkert’s Liberty, Diversity, Academic Freedom, And Survival: Preferential Hiring Among Religiously-Affiliated Institutions Of Higher Education, 22 Hofstra Labor and Employment Law Journal 1 (2004). As these articles go, it’s not too long – only 57 pages.

The bottom line is that a religious school is explicitly allowed to employ people of a particular religion if it is “in whole or in substantial part, owned, supported, controlled, or managed by a particular religion or by a particular religious corporation, association, or society, or if the curriculum of such school, college, university, or other educational institution or institution of learning is directed toward the propagation of a particular religion.” 42 U.S.C.A. § 2000e-2(e)(1)

If it’s not connected to a religion in this way, it can still escape liability through the BFOQ requirement. Thisapplies to any employer, not just educational institutions, and it permits using religion as a basis for employment “in those certain instances where religion, sex, or national origin is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise.” 42 U.S.C.A. § 2000e-2(e)(1) This exception is difficult to prove because it requires proof of “bona fide occupational qualification” (BFOQ) of religion for “normal operations.”

Many universities have religious roots, but that doesn’t mean they qualify for the exemption. The school has to be substantially controlled or supported by a church. For example, in EEOC v. Mississippi College, 626 F.2d 477, Mississippi College received the exemption because it was owned and operated by a church to train clergy in the faith. Similarly, in EEOC v. Southwestern Baptist Theological Seminary, 651 F.2d 277, the same was true of Southwestern Baptist Theological Seminary, which was principally supported and wholly controlled by an association of Southern Baptist churches for the avowed purpose of training ministers to serve the Baptist denomination. In Siegel v. Truett-McConnell College, 13 F.Supp.2d 1335, the school received the exemption because it proved that it was substantially controlled and managed by a church, which had the power to direct, restrict and govern the college. The college did not receive any federal or state funding, but did receive $714,934 in annual funding from religious sources.

To the contrary, however, in Pime v. Loyola University, 803 F.2d 351 (7th Cir 1986), Loyola University did not receive the exemption. It was not supported, controlled or managed by the Society of Jesus, although the school based its mission and teaching on the Society’s principles. Similarly, in EEOC v. Kamehameha Schools, 990 F.2d 458, a K-12 school was not granted the exception because the teachers provided instruction in secular subjects in the traditional secular way, and there was nothing to suggest that adherence to the Protestant faith was essential to performance of job. The schools were essentially secular institutions operating within historical tradition that included Protestantism and had a primarily secular purpose and character rather than a primarily religious nature.

The BFOQ requires a determination of whether the essence of the business would be undermined if the employer did not employ exclusively members of the given religion; that is, whether employing a member of the given religion is essential to the normal operation of the employer's business. The essence of the business can be determined by analyzing the service or product the employer provides. For example, the essence of an airline's business is transporting passengers, not making passengers feel psychologically secure while riding in an airplane. The determination of what constitutes the essence or fundamental objective of an employer's business or enterprise and of what constitutes the normal operation of that business depends on the facts. Therefore, the determination must be made on a case-by-case basis. If the job in question has been successfully performed by members of other religions without impairing the normal operation of the business, either for the employer or for employers with similar businesses, then there is no BFOQ. EEOC Compliance Manual, Section 625.3

It must be kept in mind that all this relates specifically to the hiring of people based on religion. The employee, in order to prevail in court, must show that the adverse action is motivated by religion. There is a serious dispute in the courts as to whether being fired by a religious institution for violation of religious rules, such as being pregnant and unmarried, or for being gay, or for getting married without obtaining a religious divorce or annulment, or committing adultery, is based on religious discrimination. Some courts have said such actions are, or can be, a Title VII violation subjecting the employer to penalties. Vigars v. Valley Christian Center of Dublin, Cal., 805 F.Supp. 802 Others have said it is discrimination based on failure to conform to behavioral standards, not religious beliefs. Pedreira v. Kentucky Baptist Homes for Children, Inc., 186 F.Supp.2d 757; Hall v. Baptist Memorial Health Care Corp., 215 F.3d 618; McCrory v. Rapides Regional Medical Center, 635 F.Supp. 975 Others have said it is religious discrimination, but that it is permitted to dismiss a person whose behavior violates religious principles as a BFOQ or on First Amendment grounds. Boyd v. Harding Academy of Memphis, Inc., 887 F.Supp. 157; Ganzy v. Allen Christian School, 995 F.Supp. 340; Little v. St. Mary Magdalene Parish, 739 F.Supp. 1003; Gosche v. Calvert High School, N.D.Ohio 1998, 997 F.Supp. 867

Turning from this legal jargon to assessing the relative merits of Professor Nemacek’s complaints as against Spring Arbor University, the school’s website does not indicate that the school is supported, controlled or managed by a religion. Therefore, it is going to have to show a BFOQ. But Nemecek is not a clergyman or a teacher of religious classes, and it doesn’t hire only religious Wesleyan Protestants (the school’s denomination). Its curriculum is not directed solely to the propagation of a religion, since most of its courses are secular. In fact, its website discloses that its mission is based on what it calls “The Concept,” which includes secular as well as religious aims. “The Concept goes to the heart of our mission as a university. By anchoring our mission to the 'lifelong involvement in the study and application of the liberal arts,' we connect with a 2,500 year history dating back to Socrates, Plato and Aristotle." http://www.arbor.edu/pdf/keepingtheconcept.pdf This doesn’t bode well for its BFOQ defense.

Spring Arbor’s claim is also made more difficult by the fact that it is located in the State of Michigan. The Federal Court of Appeals for the Sixth Circuit, which includes Michigan, has ruled that Title VII sex discrimination includes discrimination based on transgender identity. (In addition, Michigan has its own statutes that may be interpreted to prohibit gender identity discrimination.) The courts have ruled in many cases that Title VII’s religious exceptions do not permit race or sex discrimination. My guess is that Spring Arbor is not going to prevail on its BFOQ defense.