No discrimination protection for gender identity at USF

By Divya Kumar
On September 1, 2011

USF's anti-discrimination policies protect a range of classifications such as sexual orientation, race and Vietnam veteran status.

Yet those protections do not allow students like Rebecca Cardwell to use the female restroom.

In August 2010, Cardwell, a senior majoring in psychology, approached the Office of Diversity and Equal Opportunity (DEO) with questions regarding her transition from male to female.

Cardwell said her main reason for seeking out the DEO was to ensure she would not get fired from her on-campus job after transitioning.

"I went there and they told me things like I can't use the women's restroom on campus and they said it was Florida state law," she said. "Later, I found out there's no such law saying I can't use the women's restroom."

The city of Tampa, along with 16 other Florida municipalities, passed an ordinance in 2009 that added "gender identity and expression" to its anti-discrimination policy for equal access to housing, employment and public accommodations.

Additionally, University of Florida, University of Central Florida, Florida State University, University of West Florida and University of North Florida all mention gender identity within their non-discrimination policies.

USF, however, is not bound to city policies, according to an email sent from Kirk Rascoe, director of Equal Opportunity and Compliance, to Cardwell on July 7 after he consulted the General Counsel, which provides legal service and advice to USF.

"USF is governed by its Board of Trustees, who are duly appointed by and serve at the pleasure of the Governor of the State of Florida," he wrote. "The Board of Trustees, the Florida Board of Governors and the Florida Legislature are the only entities that have governing authority over USF. As such, USF is not bound by the laws or ordinances of the City of Tampa or Hillsborough County."

If the DEO couldn't protect her rights, Cardwell said she wondered who could.

Rebecca's Story

Cardwell was never a fan of public restrooms.

However, due to her job and class schedule, which require her to spend about 20 hours a day on campus, she said she now wants to be able to use a convenient one.

The only gender-neutral bathrooms Cardwell said she was aware of when advised to stay away from the female restrooms were the five located in the Marshall Student Center - about a half-mile walk away from her classes in the College of Business and Administration.

Male restrooms were not an option.

"If I were to use the male restroom, I'd probably be harassed or something," she said. "When I go in the female restroom (outside of school), no one says or does anything. It's just aligned with my identity."

When Cardwell emailed the DEO upon finding the existence of Tampa's protection of gender identity, she received a response from Diversity Consultant Bill Havens on April 28, saying the university was not bound to Tampa ordinances - a response copied to her workplace supervisor.

"That was basically like giving (my workplace) permission to discriminate against me," Cardwell said.

She said USF telling her she cannot use the female restroom on campus, which she avoids to prevent causing trouble, is like having the institution not recognize her as an individual.

Gray Area

General Counsel Gerard Solis wrote in the email to the DEO on Aug. 23 that Florida may not have a law banning the access of public accommodations for transgender individuals, but neither does it have one that includes protection against gender identity discrimination.

"There are no federal or State of Florida anti-discrimination laws that explicitly recognize transgender status as a particular category," the email said. "There are no federal or State of Florida anti-discrimination laws that explicitly prohibit discrimination in employment on the basis of ... gender expression or gender identity.

However, some states and municipalities, like the City of Tampa, do explicitly provide these protections. Among the entities that do provide protections, there are not always uniform definitions as to who is protected and under what circumstances the protections apply," the email said.

Solis said in a separate email to The Oracle that while the DEO is responsible for amending this policy, community input is also necessary before changes can be made.

"I do not mean to imply that DEO is solely or exclusively responsible for policies in this area … The actual content and scope of DEO policies is routinely the product of extended input and comment by the USF community, to include faculty, students, staff, administration and community stakeholders, where appropriate," he said.

Ted Williams, assistant vice president of the DEO, said he has heard little "hue and cry" in the department for a need to protect gender identity.

To amend the policy would take at least six months, he said. It would require eight levels of approval including by the Office of the President, before it could be put forth by the General Counsel.

Williams said the most recent time the anti-discrimination policy was amended was in 2010 at the direction of Rascoe, who urged the DEO to add "genetic information" as a protected category.

The "Rights of the Others"

Williams said he is not averse to adding gender identity as a protected clause.

"Discrimination in any form is unacceptable," he said.

The issue, however, is something he said is "a double-edged sword."

"Let's say an individual is transitioning," he said. "He or she has their right. Now, there are individuals who may be heterosexual and one of a given gender. We must understand they have their rights too. We don't want to tread on the rights of one group to facilitate or bring to fruition the rights of the others."

When the Tampa City Council voted 5-1 to add gender identity as a protected category, Councilman Charlie Miranda was the only vote against the measure.

Miranda, who was recently hospitalized, was unable to comment, but his legislative aide Mary Bryan said Miranda was concerned of "those who would come to work one day as one gender and a different gender the next."

Shelbi Day, a staff attorney for the American Civil Liberties Union of Florida, said it is essential for universities to protect everyone in their anti-discrimination policies.

"It's extremely important for policies to be inclusive and enumerate a list that includes the protection of gender expression and gender identity," she said. "It needs to be a written policy. Policies set the perception, and it's important that all faculty, staff and students feel protected."

Williams said the desire to add gender identity to the anti-discrimination policy would have to be expressed by the USF community.

"It's a matter of what is the will of the majority of a community, as it relates to a given issue," he said. "We do not live in a utopian society, where all perspectives can be met. Are we there yet? No, but we're getting there."

Cardwell said the right to use the bathroom without being harassed is one that can't wait for the consent of others.

"I would just like to be able to use the women's restroom just like anybody else," she said. "I just want to be treated like anyone else - with respect and consideration."

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