Joe Maldonado, 8, joined Cub Scout Pack 87 in Secaucus, New Jersey because, in his own words, “all of my favorite friends were there.”
But after Joe’s mother, Kristie, enrolled her son in the troop, she was then told by the Boy Scouts of America that her son was banned from membership because of his gender identity, as the child is transgender, and was born with physical female sexual organs.
In a statement given to CBS News, the Boy Scouts of America clarified its decision, specifying, “No youth may be removed from any of our programs on the basis of his or her sexual orientation. Gender identity isn’t related to sexual orientation.”
Joe had been a member of Pack 87 for a month before his membership was rescinded.
While the Boy Scouts of America have changed their policies in regards to the sexual orientation of its members and troop leaders in 2015, the organization has no official, written policies pertaining to gender identity.
A spokesperson for the Boy Scouts of America has stated, however, that the group uses “the classification on the participant’s birth certificate” to “confirm legal status.” In other words, unless a young transgender individual has had their government documents changed to reflect their gender identity, their expressed gender identity is not seemingly recognized by the scouting group. In New Jersey, a surgery or other medical procedure is required for a transgender individual to have their gender changed on their birth certificate.
“Generally, it seems like the Boy Scouts is behind its sister organization, the Girls Scouts, which already has extended membership to all girls regardless of gender identity or sexual orientation,” Adaku Onyeka-Crawford, Counsel at the National Women’s Law Center, tells Yahoo Beauty.
Onyeka-Crawford explains that there are a couple of laws at play when it comes to claims of discrimination that Maldonado and their family might make against the scouting organization.
“Unfortunately, Title IX is only at play if the troop is using a federally-funded facility, like a school, to hold their meetings. And if the troop were to meet at a school, Title IX would just ensure that the school would have to otherwise make activities available for those being excluded” because of their gender identity.
However, Onyeka-Crawford continues, New Jersey itself has a wide-ranging blanket anti-discrimination law on the books, saying that a person cannot be denied access to public accommodations — a term that can encompass any organization that holds itself out to the public and takes advantage of public resources, including advertising its open membership to the public and holding meetings in public places — for a number of characteristics, including gender identity and expression.
In 1999, the New Jersey Supreme Court declared that the Boy Scouts met the definition of a public accommodation in the case of Dale v. Boy Scouts of America, meaning they could not deny employment to a scout leader based on his sexual orientation.
However, Onyeka-Crawford adds, in 2000, the U. S. Supreme Court reversed the decision saying that interpreting the New Jersey law in this way violated the First Amendment’s right of expressive association.
“At the time, the Boy Scouts had a practice of excluding membership on the basis of homosexuality dating back to 1978,” she says. “As a result, the Boy Scouts continued to deny membership and employment to gay scouts and troop leaders until 2015, when it changed its policies. So, if the Boy Scouts of America has a similar precedent of denying membership based on gender identity, they may be able to present a similar argument in this case.”
“There could be a case for Joe and his family to seek public accommodations because he’s been discriminated against because of his gender identity. This is untested, but it could be a way forward for him,” Onyeka-Crawford emphasizes.
She adds, “I think that what Joe and his family is doing is the right way, getting other folks and especially transgender and gender advocates to see that youth groups have a powerful role to play in promoting inclusivity and tolerance. Pushing the Boy Scouts to be more inclusive and to be more progressive and accepting — the Girl Scouts have been doing this for years and there’s been no uproar. If anything, more folks are now enrolling in the Girl Scouts because they’ve been so open and inclusive. Hopefully, the Boy Scouts will also be more open and affirming to all youth and individuals, regardless of their gender identity.”
Earlier this year, the Boy Scouts of America said it would allow transgender youth to participate in its co-ed programs, but not single-sex organizations like the Cub Scouts and Boy Scouts.
Concludes Onyeka-Crawford, “Hopefully it doesn’t take any litigation and 15 years for the Boy Scouts to do what’s right and extend membership to all boys regardless of gender identity, and live up to the values of friendliness, kindness, and bravery they supposedly promote.”