Misgendering, retaliation at issue
In June 2018, referring to federal law, CUNY General Counsel Loretta Martinez said in a memo to CUNY college presidents: “As with students, the law affords employees the right to use a preferred name and gender on all records, regardless of the individual’s legal name or sex assigned at birth, except in circumstances where legal name may be required on official records by law.”
Red Washburn a gender studies scholar at Kingsborough Community College has filed a federal lawsuit against the KCC administration on grounds that the administration has purposefully and maliciously discriminated against them due to their non-binary gender identity.
Washburn is an associate professor of English and Women’s and Gender Studies (WGS) at the south Brooklyn campus, as well as the director of Women’s and Gender Studies. Their scholarship spans queer theory, literature, anti-colonialism and Irish republicanism. The allegations in the lawsuit depict not a few one-off instances of misgendering, forgetfulness or bias, but rather alleges a sustained, systematic pattern of abuse by management of a worker based on the worker being a gender non-binary person.
After receiving tenure at KCC in 2017, Washburn began the process of changing their first name to “Red” and using the pronouns “they,” “them” and “their” at work (Professor Washburn had previously used female pronouns “she” and “her”) in Spring 2018, Washburn asked that college email messages and other documents reflect the change. The following summer, Washburn had gender-affirming surgery and asked for accommodations, such as modified duties and limited teaching duties, while recovering from their invasive medical procedure.
The lawsuit, filed with the US District Court in Brooklyn, alleges that the college then began to exhibit hostility toward Washburn. “Since coming out as transgender, Dr. Washburn has experienced discrimination and retaliation from Kingsborough Community College,” the lawsuit said. “Dr. Washburn has also been required to engage in extensive efforts to prepare, file and prosecute discrimination complaints that have detracted from their ability to conduct the [academic] work of the school and have increased their level of stress at a time when they are recuperating from top surgery, which has impeded their physical healing…[The administration] also continually engaged in misgendering Dr. Washburn, despite clear notice of Dr. Washburn’s proper name, title and gendered pronouns. This misgendering continued unapologetically to a degree that denotes intentional misgendering, rather than innocent mistakes made by persons unfamiliar with issues of gender.”
In addition to naming the college and CUNY as defendants, the lawsuit names several Kingsborough administrators, including Provost Joanne Russell, Mickie Driscoll (executive director of human resources and the labor designee) and James Capozzi (director of public safety until last December). The complaint alleges that the provost insisted on using Washburn’s old first name, even after being informed that Washburn had a new name “based on gender identity.” The lawsuit also alleges that Capozzi attempted to interrogate Washburn in regard to previous activist organizing and continuously misgendered them in his communications, and that he insisted on questioning Washburn as they were recovering from gender-affirming surgery, an insistence that contributed to Washburn’s “psychological distress.”
Washburn alleges these events happened even as CUNY Central attempted to keep CUNY campuses in compliance with New York’s Gender Expression Non-Discrimination Act.
Things got worse for Washburn, the lawsuit alleges, and included retaliation against the program they head. “Washburn claims the school defunded the Women and Gender Studies department soon after Washburn came out as transgender,” the New York Daily News reported. “Washburn also alleges in the lawsuit that they were moved into a new office at the school that was no more than a tiny storage closet, claiming the room did not even have space for a desk. In the fall of 2018, the day before classes started, Kingsborough College canceled Washburn’s Sexuality and Literature class, claiming the enrollment was too low, the lawsuit said.”
Washburn’s lawsuit denies that enrollment was low. In an interview with Clarion, Washburn explained that administrators began to treat them negatively after their gender transition. “My administrators treated me as a valued colleague before I came out,” Washburn said. “I was given the classes I wanted, reassigned time, office space and invited to many conferences, talks, opportunities for grants, etc. I was treated with intellectual respect before I came out, just as I have experienced at more than a half a dozen colleges where I have taught for almost 20 years, including recently at Vassar College and Brooklyn College.”
The resulting trauma has been intense, Washburn said. “The experiences I have had with transphobia since I came out after tenure have harmed me immensely,” they told Clarion. “Physically, I have had to have two revision surgeries, rather than one top surgery. I am still not fully healed. Psychologically, I have acute PTSD and an anxiety disorder from being treated inhumanely for many years now.”
The bright spot, Washburn said, was that colleagues and students have been supportive. “Many of my colleagues and students wrote letters of support, signed petitions, participated in roundtables, asked for meetings and supported me in my defense of the program,” they said. “The administration responded by calling people into [meetings] for investigations. I continued the campaign, getting support from across CUNY and the nation.”
The administration tells a different story about Washburn’s charge that budget cuts to WGS were personal retaliation against them. In a letter from KCC President Claudia Schrader and Provost Joanne Russell to the college community in the ‘Fall semester, the administration stated that any changes to the WGS program were a result of low enrollment (an average of 7.6 students in the concentration in the last five years, according to the college). The letter said, “The changes were made in the interests in equitable resource distribution… . As of Fall 2018, WGS faculty directors have the same level of resources for research, program development and work with students as all other directors of concentrations within the Liberal Arts Program.”
JUSTICE FOR ALL
At press time, the university had not filed a legal response to Washburn’s allegations. A spokesperson for CUNY declined to comment on the case, citing a policy of not commenting on ongoing litigation.
Jillian Weiss, Washburn’s attorney, told Clarion that there is some federal caselaw to support Washburn’s case, including a 2019 opinion ruling that discrimination against transgender people is a form of sex discrimination. “Professor Washburn seeks only equal treatment, not special treatment,” Weiss said. “We do not seek special justice, but equal justice under the law, as it is stated in the United States Constitution: ‘nor deny to any person within its jurisdiction the equal protection of the laws.’”
In addition to a monetary award, the lawsuit asks that Washburn be allowed to “transfer to another CUNY WGS, retaining their tenure and rank.”
But beyond that, Washburn is seeking a larger form of justice.
“I hope justice comes as a result this lawsuit,” Washburn told Clarion. “I want justice not just for myself, but also for all trans faculty and students in CUNY.”
‘They’: what’s in a pronoun?
By ARI PAUL
Conservatives like Canadian author and academic Jordan Peterson have thrown scorn on the mainstream emergence of “they” as a gender-neutral pronoun for gender non-binary people. And scholars have grappled with this seemingly new parlance.
Singular “they” is winning the day, as Merriam-Webster added it to dictionary in September 2019. “We will note that ‘they’ has been in consistent use as a singular pronoun since the late 1300s; that the development of singular ‘they’ mirrors the development of the singular ‘you’ from the plural ‘you,’ yet we don’t complain that singular ‘you’ is ungrammatical; and that regardless of what detractors say, nearly everyone uses the singular ‘they’ in casual conversation and often in formal writing,” the dictionary said on its website.
The New York Times cited how linguist Dennis Baron “points out that singular ‘they’ is older than singular ‘you.’ Only in the 1600s did singular ‘you’ start pushing out ‘thou’ and ‘thee.’”
Merriam-Webster continued, “There have always been people who didn’t conform to an expected gender expression, or who seemed to be neither male nor female. But we’ve struggled to find the right language to describe these people – and in particular, the right pronouns. In the 17th century, English laws concerning inheritance sometimes referred to people who didn’t fit a gender binary using the pronoun ‘it,’ which, while dehumanizing, was conceived of as being the most grammatically fit answer to gendered pronouns around then. Adopting the already-singular ‘they’ is vastly preferable.”