Under Title VII of the Civil Rights Act of 1964, a number of courts have concluded that discrimination against an individual because he or she is transgender constitutes unlawful sex discrimination. In my view, even if those courts have interpreted Title VII correctly, their legal analysis provides little support for the proposition that Title VII requires an employer to grant a transgender individual access to the sex-specific bathroom consistent with his or her gender presentation. As suggested below, however, all is not lost, because there is a much better argument waiting in the wings.
The much ballyhooed decision by Judge James Robertson in Schroer v. Billington, 577 F. Supp. 2d 293 (D.D.C. 2008), illustrates the limitations of current approaches. In Schroer, Judge Robertson discussed three theories under which the Library of Congress's decision to withdraw a job offer to Diane Schroer based on her transgender status might be deemed to be sex discrimination. Under the first theory, the one applied by the vast majority of courts upholding sex discrimination claims by transgender individuals, discrimination based on transgender status is viewed as a form of sex stereotyping. In concluding that Schroer had been treated differently based on sex stereotypes, Judge Robertson noted that the defendant was liable whether it perceived Schroer to be an "insufficiently masculine man, an insufficiently feminine woman, or an inherently gender nonconforming transsexual." If a transgender woman wants to use a single-sex bathroom designated for women, however, then she must be viewed as an "insufficiently feminine woman," but Judge Robertson did not reach that issue because, as he noted, the outcome was the same no matter Schroer's particular sex.
The second rationale is perhaps even more problematic. Under that approach, Judge Robertson concluded that the defendant's decision to withdraw its job offer was sex-based, because its decision was based on Schroer's "plan to change her anatomical sex by undergoing sex reassignment surgery." Because this approach appears to tie the definition of "sex" to sexual anatomy, it does not seem to support a definition of sex that is based merely on an individual's gender identity.
Finally, there is the third and most promising rationale. But alas, Judge Robertson did not address the merits of that rationale because he determined it was unnecessary to do so in Schroer's case. After all, he'd already provided two reasons where most courts had only provided one.
Under that rationale, gender identity is a component of sex, and therefore, sex discrimination includes discrimination based on gender identity in and of itself. Given the competing expert testimony, Judge Robertson concluded that resolving the dispute was "not within this Court's competence." Despite Judge Robertson's reluctance to go down this road, Judge John Grady did just that in 1984 in Ulane v. Eastern Airlines, Inc.:
I find by the greater weight of the evidence that sex is not a cut-and-dried matter of chromosomes, and that while there may be some argument about the matter in the medical community, the evidence in this record satisfies me that the term, "sex," as used in any scientific sense and as used in the statute can be and should be reasonably interpreted to include among its denotations the question of sexual identity and that, therefore, transsexuals are protected by Title VII.Judge Grady's decision was reversed by the Seventh Circuit in what remains the seminal decision concluding that transgender status is not protected under Title VII. When Judge Robertson denied the Library of Congress's motion to dismiss Schroer's complaint, he noted that "it may be time to revisit Judge Grady's conclusion in Ulane I that discrimination against transsexuals because they are transsexuals is 'literally' discrimination 'because of sex.'" For whatever reason, though, he ultimately decided not to revisit that conclusion himself.
Compared with the other rationales in Schroer, the Grady rationale almost certainly provides the strongest argument for interpreting Title VII to require that bathroom access be designated by gender presentation. Sex-based bathroom access obviously discriminates based on sex. But if "sex" includes both biological sex and gender identity, then employers should be mindful of both aspects of sex and balance them appropriately when making decisions related to bathroom access. So even if privacy interests justify single-sex bathrooms, that doesn't mean that access shouldn't also respect the right of transgender individuals not to be subjected to discrimination based on gender identity.
It may not necessarily follow from this analysis that designating bathroom access based on biological sex constitutes gender identity discrimination in violation of Title VII, but to my mind, it's the only one of the three Schroer approaches that even comes close.
On April 19, 2016, the Fourth Circuit reversed the lower court's dismissal of G.G.'s claim alleging sex discrimination in violation of Title IX of the Education Amendments Act of 1972. G.G., a transgender boy, alleged that he was subjected to sex discrimination when he was denied access to boys' bathrooms.
Under a Department of Education regulation, it is permissible to provide "separate toilet, locker room, and shower facilities on the basis of sex." In a 2015 opinion letter, the Department interpreted the regulation as generally requiring schools to "treat transgender students consistent with their gender identity."
The majority took a middle-of-the-road approach that did not specifically address whether denying transgender individuals bathroom access consistent with their gender identity constitutes sex discrimination. Instead, the majority decision by Judge Henry Floyd merely concluded that the Department's interpretation of its own regulation was "not plainly erroneous or inconsistent with the text of the regulation." Thus, the majority stated that a subsequent administration could implement a different policy.
By contrast, Judge Andre Davis signaled in his concurrence that he thought the school board's policy of segregating bathroom access by biological sex violated Title IX. And Judge Paul Niemeyer concluded in his dissent that the school board's decision to designate bathroom access by biological sex complied with unambiguous language in Title IX and Department of Education regulations.
In light of my take on Schroer, I was pleased to see that the majority's decision cited expansive definitions of "sex" that recognize that the "hard-and-fast binary division on the basis of reproductive organs -- although useful in most cases -- [is] not universally descriptive." The court noted that the Department's regulation permitting sex-segregated facilities assumes a student population "where the various indicators of sex all point in the same direction[, and thus,] sheds little light on how exactly to determine the 'character of being either male or female' where those indicators diverge." Given the regulation's silence as to the treatment of transgender individuals, the court concluded that the Department's interpretation is "permitted by the varying physical, psychological, and social aspects -- or, in the words of an older dictionary, 'the morphological, physiological, and behavioral peculiarities' -- included in the term 'sex.'"
The discussion of the transgender bathroom issue is continued in this subsequent post on DOJ's HB2 letter.
On October 28, 2016, the Supreme Court granted certiorari in the G.G. case, as discussed here.
This blog reflects the views solely of its author. It is not intended, and should not be regarded, as legal advice on how to analyze any particular set of facts.