Paul Southwick and Cliff Davidson Fighters for Rights
By Katie Vloet
U-M Law
When the ruling came down in a high-profile gender identity discrimination case, Paul Southwick and Cliff Davidson recognized that it wasn’t everything they had hoped for. Still, they considered it a big win for their client, who had been expelled from a Christian college after revealing on a television show that she was assigned the male sex at birth.
Domaine Javier was admitted to study pre-nursing at California Baptist University when college officials learned that she had talked about her gender identity on MTV’s True Life. The college expelled Javier—who has always considered herself to be female—for fraud because she had identified herself as female on her enrollment application.
A judge from the Superior Court of Riverside County, California, in July found that the school was within its rights to exclude Javier from its undergraduate courses—but also that Cal Baptist discriminated against Javier with regard to the school’s “public” facilities. The part of the ruling that favored Javier was heralded as momentous by supporters of LGBT rights.
“It was the first time a court on summary judgment had to say what gender identity discrimination looks like,” says Southwick, who handles complex commercial disputes for Davis Wright Tremaine in Portland, Oregon. “This case said you have to accept the gender identity of people who are transgender and not call them a fraud. That was a big win.”
Southwick met Javier when he was doing video interviews with LGBT students who had attended conservative Christian colleges and universities—like he had as an undergrad. The interview evolved into Southwick representing Javier, and then asking Davidson, his fellow Michigan Law alumnus, to join him and partner Timothy Volpert on the case. Davidson, a commercial litigator with Sussman Shank in Portland, eagerly signed on.
The team argued that California’s Unruh Civil Rights Act prohibits discrimination based on gender identity and gender expression, among other factors. The suit cited breach of contract, breach of implied covenant of good faith and fair dealing, and violation of the Unruh act for Javier’s suspension, exclusion, and expulsion.
The school had sought to dismiss the suit, arguing that, as a religious institution, it was not bound by the Unruh Act. But “this is a university that doesn’t limit its enrollment to Christians, and that benefits from a government-backed, tax-free bond program,” Davidson points out. “It is our contention that they should be bound by the Unruh Act.”
In the end, Cal Baptist won on four of five counts. But the count on which Javier’s team won is vital to the advancement of LGBT rights, Southwick says.
“The judge said she should have access to all the public spaces—like the library, counseling center, and restaurants—on the campus, even though they are operated by a religiously affiliated organization,” he says. “This has implications for a variety of religiously affiliated organizations—not just colleges and universities, but also hospitals and other institutions.”
Significantly, online courses were included in the ruling as something that was not protected by a school’s religious affiliation. “That’s a big win, since online courses are such a cash cow to universities and are becoming more and more common,” Davidson says.
As for Javier, she is now studying nursing at another college. And she feels vindicated by the judge’s ruling: “With Domaine, what you see is what you get,” Southwick says. “And the court recognized her right to be who she is.”
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