Preeminent LGBT Lawyer Explains Transgender Athletes’ Rights

Sports are often a mirror of society — the good and the bad. Yet while sports is often the one area where talent overrides racial, gender, and religious biases and prejudices, transgender athletes are still battling for acceptance.

A recent lawsuit filed by a California woman against CrossFit illustrates the challenge that transgender athletes face when attempting to compete in sexually divided sports. Chloie Jonsson, a personal trainer, charges the CrossFit company with discrimination, intentional infliction of emotional distress and unfair competition for prohibiting her from competing in a strength competition as a female. She is seeking $2.5 million in damages.

Ms. Jonsson’s struggle to compete as a woman after undergoing sexual reassignment surgery and hormone treatment raises many difficult legal questions about how athletic organizations should handle transgender athletes’ requests to compete in a given gender classification. To answer some of those questions I turned to the top LGBT lawyer in Philadelphia, Angela Giampolo. Ms. Giampolo, who runs PhillyGayLawyer.com, specializes in Corporate Law, Real Estate, International Law (Asia and Africa), Civil Rights, LGBT Law, and Estate Planning.

Personal trainer Chloie Jonsson is suing CrossFit for prohibiting her from competing with women because she was born a man.

In the case of Chloie Johnnson suing CrossFit, she is asserting her claim under a California law that prohibits discrimination on the basis of gender identity and sexual orientation. If Chloie had tried to compete in Pennsylvania, where such a law does not exist, what civil remedies would she have, if any?

It would depend on where in Pennsylvania she lived. There is no comprehensive state-wide law protecting people against discrimination in public accommodations based on gender identity, but there are ordinances in 12 of the 15 largest municipalities in the state.

If Jonnson tried to compete in Philadelphia, she would be protected under § 9-1106(1) of the Philadelphia Code (the Fair Practices Ordinance), which states that “[i]t shall be an unlawful public accommodations practice to deny or interfere with the public accommodations opportunities of an individual or otherwise discriminate based on his or her … gender identity.” “Gender identity” is defined at § 9-1102(1)(k) of the code as “[s]elf-perception, or perception by others, as male or female, and shall include an individual’s appearance, behavior, or physical characteristics, that may be in accord with, or opposed to, one’s physical anatomy, chromosomal sex, or sex assigned at birth; and shall include, but not be limited to, individuals who are undergoing or have completed sex reassignment.” CrossFit is a public accommodation because it “solicits or accepts the patronage or trade of the public,” and its “goods, services, facilities, privileges, advantages or accommodations are extended, offered, sold, or otherwise made available to the public.” § 9-1102(1)(w).

In the Jonnson case, CrossFit claims that they are not discriminating against Johnnson because they are not barring her from competition entirely, only forcing her to compete in the men’s division. However, “discrimination” is defined broadly by the Philadelphia ordinance at § 9-1102(1)(e) to include “[a]ny direct or indirect practice of exclusion, distinction, restriction, segregation, limitation, refusal, denial, differentiation or preference in the treatment of a person” who falls into one of the protected classes named in the ordinance. Here, forcing her to compete in the men’s division against her will because of what CrossFit sees as a non-conforming gender identity seems to qualify as distinction, segregation, differentiation, or all three.

In Philadelphia, if a violation of the Fair Practices Ordinance occurs, the violator may be fined by the city up to $2,000 for each offence. In addition, civil remedies are available to victims of discrimination under the ordinance. A successful plaintiff is authorized by statute to recover “(a) Compensatory damages; (b) Punitive damages; (c) Reasonable attorneys’ fees; (d) Court costs; and (e) Such other relief, including injunctive relief, as the court may deem appropriate.” § 9-1122(3).

Angela Giampolo, Esq.

For residents of states that do not have gender identity/sexual orientation protections, are there any federal statutes that would allow a gay or transgender individual to sue for discrimination?

Unfortunately, Jonnson and people in her situation are out of luck under federal law. There is no comprehensive federal law banning discrimination based on sexual orientation or gender identity. In the last ten years, great strides have been made in the employment discrimination arena under title VII of the Civil Rights Act of 1964, which bans discrimination based on “race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a). Federal courts have interpreted the language banning employment discrimination based on sex to include discrimination based on behavior not in accord with societal gender norms. See Prowel v. Wise Business Forms, 579 F. 3d 285 (3rd Cir. 2009) (holding that a self-described “effeminate man” made a valid claim under title VII for employment discrimination after being harassed and then laid off because of his sex, regardless of his sexual orientation), and Smith v. City of Salem, Ohio, 378 F. 3d 566 (6th Cir. 2004) (holding that a transgender firefighter made a valid Title VII for being fired after revealing his diagnosis of Gender Identity Disorder and his intent to undergo gender confirmation therapy to a superior officer). Further, there is federal employment non-discrimination statute pending in congress right now (ENDA).

However, none of that would help someone in Johnnson’s situation since she isn’t trying to get hired by CrossFit, only take advantage of a service that they offer. Instead of employment discrimination, this puts her in the realm of public accommodation law. Some states, like California and Massachusetts, have laws on the books banning discrimination in public accommodations based on sexual orientation and gender identity. Title II of the Civil Rights Act of 1964 covers public accommodations, and bans discrimination based on “race, color, religion, or national origin.” 42 U.S.C. § 2000a(a). “Sex” is conspicuously absent, and Title II goes on to make an exception for “private establishments” without defining what those are. 42 U.S.C. § 2000a(e). Therefore, not even the rather tenuous protections of title VII for are available for transgender people in a public accommodations context.

Do think Pennsylvania will eventually join its neighbor New Jersey and add protections for gender identity/sexual orientation?

It actually might. In December of 2013, Governor Corbett announced his support for a bill that would ban discrimination based on sexual orientation and gender identity in the state. The fate of the bill remains to be seen, but Corbett said he expected it to garner support “from both sides of the aisle.”

Interestingly, Pennsylvania has banned employment discrimination based on orientation and gender identity in state government since 2003, but by executive order rather than by statute. Pa. Exec. Order No. 2003-10 (July 28, 2003).

Are there any uniform laws that define who is a man and who is a woman or does it vary by state, organization, athletic commission, etc?

At the federal level, there are statutes which offer general definitions for purposes of “gender identity” within other laws, but nothing on its own in enacted legislation. This is a broad definition. The most recent example is under the hate crimes acts section of the United States code. Under 18 USCS § 249(c)(4) (“Hate crimes acts”) – the term “gender identity” means actual or perceived gender-related characteristics.

At the state level, each state has a different jurisdictional approach to defining who is a man and who is a woman. PA does not have a state transgender definition that I could find. Title VII does not include transgender as a protected class and the Pennsylvania Human Right Act (PHRA) was written to be consistent with that law.

In this instance, CrossFit defines a competitor’s sex by their birth gender. This seems harmless on its face, but such a policy does not take into account gender reassignment surgery, hormone treatments, and/or a competitor not wanting to publicly reveal their past identity. How would you advise an athletic organization to develop a fair policy regarding gender identity?

As stated in CrossFit’s press release – following the filing of this lawsuit – athletic organizations are ostensibly concerned about promoting fairness amongst their competing athletes. Understandably, a transgender person who is pre-op and not receiving hormone therapy would continue to have the athletic abilities of the gender they were born with. However, transgender men and women who undergo a course of hormone therapy are no longer predisposed to the same strength or inherent abilities as they used to be.

In designing an inclusive and non-discriminatory policy, athletic organizations need to acknowledge the physical changes that transgender individuals undergo as part of transitioning to their new identity. By requiring someone who has fully transitioned to be classified by their birth gender, athletic organizations are effectively negating any changes and needlessly humiliating these individuals and exposing them.

On that note, the International Olympic Committee allows transgender athletes to compete with their new sex if they have undergone gender reassignment surgery, a minimum of two years of hormone therapy, and are recognized legally as the sex they wish to compete in. Does that seem fair and rational?

Yes and no. First, it is a good thing that the IOC is applying a uniform standard to the competing athletes on its face. In discrimination cases it is important to distinguish between policies that facially discriminate and policies that discriminate through neutral wording. So while, the IOC’s policy may discriminate through neutral wording, they are making the effort to be fair and impartial.

Second, it is a bad thing that the IOC requires recognition legally be their home country. For athletes in more enlightened countries with progressive recognition policies, this policy is a clear benefit. But the purpose of the Olympics is overall inclusivity and the search for athletic perfection. By requiring legal recognition, athletes in non-recognition countries are going to be completely excluded and marginalized. Not to mention, that this validates the laws of absolutist or discriminatory regimes – e.g. Uganda’s gay death bill or Russia’s propaganda law.

One of the Plaintiff’s claims in this lawsuit is for intentional infliction of emotional distress. What does that mean and does proving that CrossFit intentionally inflicted emotional distress require anything other than the standard preponderance of the evidence burden of proof?

A cause of action for intentional infliction of emotional distress is generally difficult to prove because of the high standard of outrageousness set by courts. It exists when there is ‘(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff’s suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct.’ A defendant’s conduct is “outrageous” when it is so extreme as to exceed all bounds of that usually tolerated in a civilized community. The defendant’s conduct must be intended to inflict injury or engaged in with the realization that injury will result. Potter v. Firestone Tire & Rubber Co., 6 Cal.4th 965, 1001(1993)(internal quotations omitted).

Liability for intentional infliction of emotional distress does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities. Rest.2d Torts, § 46, com. d. With respect to the requirement that a plaintiff show severe emotional distress, this court has set a high bar. Severe emotional distress means emotional distress of such substantial quality or enduring quality that no reasonable person in civilized society should be expected to endure it. Hughes v. Pair, 46 Cal. 4th 1035 (quoting Potter). Some courts have held the Twombly/Iqbal pleading standard for “severe” emotional distress to require a plaintiff to delineate symptoms and a medically diagnosable ailment that he or she suffers from as a result of the defendant’s conduct. The intensity and the duration of the emotional distress may be considered. It may consist of any highly unpleasant reaction such as fright, grief, shame, humiliation, embarrassment, anger, or worry.

In a lawsuit like this, how much strategy, if any, goes into picking a venue? I imagine some juries are more sympathetic to transgender people in certain locales.

Chloie’s lawsuit was filed in Santa Cruz, California where CrossFit was launched in the late 1990’s. Usually, venue is in the county where the person you are suing lives or does business (if you are suing a business or organization) or where the dispute arose, like where an accident happened, or where a contract was entered into or broken.

If you have the option to choose a venue that will produce a less hostile environment, then of course that will be preferable. You should also consider whether you may be litigating your case in your opponent’s “backyard.” But you can also protect your client’s interests during the jury selection process and try to weed out biases that may affect your chances.

Santa Cruz, CA in particular is a more liberal minded area, being one of the first cities to approve the use of medical marijuana. Whilst Santa Cruz has an incredibly active veterans community that might not be sympathetic to the plight of a transgender individual they don’t understand, one would hope that, with Santa Cruz being just south of San Francisco and having its own LGBT Community Center and bars, that a jury would consist of LGBT friendly individuals.

Focusing on your practice, you started your own firm in 2008, which I can’t imagine was an easy economy to start your own business in. How has your business been since then and have you learned any tips you could share with law students or young lawyers interested in breaking out on their own?

Before starting my own law firm, I already had a clear picture of who would be my “market.” I saw that there was a gap in the market for LGBT individuals that would need a lawyer in areas such as family and business law, that is understanding of their unique needs. I believe that it is important to be involved as a leader in the community. I am the owner and founder of Philadelphia’s most popular LGBT law blog and resource directory, www.phillygaylawyer.com. On PhillyGayLawyer, I strive to provide valuable resources for what important legal updates in the LGBT community. I also strongly believe in being entrepreneurial. I am constantly finding innovative ways to network and create relationships and ties to the community.

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