Discrimination, Yes, But What Kind?

Doug Lederman, Inside Higher Ed
Wednesday, June 1, 2005



“I wish to share with you a private aspect of myself that you do not know about,” Robert Blanchette’s letter began. After two years of treatment for depression, the computer programmer wrote to administrators at Saint Anselm College on March 5, 2004, he had been diagnosed with gender
identity dysphoria, a “condition where my emotional and psychological gender is not in alignment with my genetic physiological sex.”  He added: “In other words, I am a male to female transsexual.”

In the letter and in a meeting with administrators at the New Hampshire Roman Catholic college a few days later, Blanchette said that in the previous weeks and months, the 53-year-old former U.S. Air Force pilot had taken many of the necessary steps to transform himself into a woman, including hormone treatments. Blanchette planned, he said, to spend a two-week vacation in May undertaking the required legal steps to change his identity. He then hoped to return to the college as Sarah Elizabeth Blanchette.

“My job here at Saint Anselm is based on my mental skills not on physical ones,” he wrote, noting that his work in the information technology department gave him little contact with faculty members and students.  “I enjoy my job here and I do not see any reason why I should not be able to continue doing the professional job that I have done for the last six and a half years. If anything I could possibly be more productive since a major cause of inner turmoil and unhappiness has been removed.”

Five weeks later, at an April 14 meeting, Saint Anselm’s administrative vice president, Patricia R. Shuster, fired Blanchette. “As you know, you recently disclosed to senior college administration your transsexual status. Upon consideration, you are immediately relieved of your duties,” she wrote in a memo delivered at the end of that meeting.  Blanchette’s “employment with the college will terminate effective June 30,” Shuster added.

Last Thursday, Sarah Blanchette filed a lawsuit in federal district court charging the college with violating Title VII of the Civil Rights Act, which prohibits discrimination in employment on the basis of race, religion, sex and national origin. Her lawsuit, which was first reported by the Nashua Telegraph, asks a judge to reinstate her to her job and award back pay and damages.

“It is clear, because the college put it in writing, that they fired Sarah Blanchette because she is transsexual,” says Bennett H. Klein, a lawyer for Gay and Lesbian Advocates and Defenders, a non-profit legal group. “And that is illegal sex discrimination.”

Saint Anselm officials referred questions about the lawsuit to an outside lawyer, Sean Gorman. He said the college could not respond to the suit yet, except to say that “there is obviously another side to the
story, and it’s not presented in the complaint, where you wouldn’t expect it to be.” He declined to be more specific. “There is a great deal more that I can’t speak to.”  Gorman did say, however, that Title VII of the civil rights law does not prohibit discrimination on the basis of sexual orientation. “There is
a series of cases that established that pretty well, so transgendered status is not covered,” he said.

Klein, Blanchette’s lawyer, disputed that assessment, saying there “are many other cases around the country where courts have found that somebody who was terminated because they’re transgendered” was discriminated against under federal and state nondiscrimination laws. “We’re not talking about sexual orientation discrimination here; being transgendered has to do with gender identity.”

Douglas W. Kmiec, a law professor at Pepperdine University, said he believed the eventual outcome of the case would probably hinge on how the courts interpret the exemption available under Title VII for religious institutions.

Read broadly, Kmiec said, religious colleges have significant latitude to make employment decisions that are consistent with the teachings of the church with which they are affiliated. For instance, the Catholic
Church has issued doctrinal statements in recent years that strongly suggest that “sex change procedures are not to be condoned,” Kmiec said.  Saint Anselm could argue that “to the extent that you condone practices or behavior that are condemned by the church, you are separating yourself from the church,” Kmiec said. “In all likelihood, there’s enough in the modern teachings of the church for the college to make a fairly substantial religious exemption defense.”

Blanchette, Kmiec said, is likely to argue that the decision to dismiss her is “not a discrimination on the basis of religion but of gender,” and that “religion is merely being used as a pretext for gender
discrimination.”

Through her lawyer, Blanchette declined to comment on the case. But her original letter to Saint Anselm officials suggests that she will not relish the attention she’ll receive from filing the lawsuit.  The decision to become a woman “is not one that I have made lightly,” she wrote. “I am not doing this to embarrass anyone, nor to seek notoriety or cause disruption. I am doing this as a matter of survival. Rest assured that I will present myself in a professional and age appropriate manner.... I just want to disappear into the crowd, not stand out from it.”