Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004), and Barnes v. City of Cincinnati, 401 F.3d 729 (6th Cir. 2005), both involved claims by individuals who were designated as male at birth but later self-identified as female. The Sixth Circuit viewed the plaintiffs in both of these cases, however, as men who were subjected to discrimination because of their perceived effeminacy. Thus, these cases support the conclusion that it would have been unlawful to have denied the plaintiffs access to the men's bathroom, despite their effeminacy. Since the Sixth Circuit viewed the plaintiffs as male, Smith and Barnes clearly do not support the conclusion that it would have been unlawful to have denied the plaintiffs access to the women's bathroom. And obviously, if single-sex bathrooms are permissible, an employer cannot be required to provide the same employee access to both men's and women's bathrooms. The question is which bathroom is appropriate, and under Smith and Barnes, the appropriate bathroom for transgender women is the men's bathroom.
The third case, Glenn v. Brumby, 663 F.3d 1312 (11th Cir. 2011), also involving a transgender woman, was brought under 42 U.S.C. § 1981, but it relied on Title VII case law. In Glenn, the court at least referred to the plaintiff with the feminine pronoun "she." However, the court noted that the employer viewed the plaintiff as a "man dressed as a woman and made up as a woman." Under Title VII, it would seem to be impossible for an employer to intentionally discriminate against an employee based on her female status if the employer views the employee as being male. Moreover, the court signaled that the employer's termination of the plaintiff would not have been sex-based if the employer had had legitimate concerns about lawsuits arising from the plaintiff's use of the women's bathroom. Rather than outright rejecting such a rationale as sex discrimination, the court concluded that the employer was not actually motivated by that rationale since, among other things, the plaintiff's workplace included only single-use bathrooms.
The last case cited in the DOJ letter is Schroer v. Billington, which I discussed in my prior post on transgender bathroom access. Because Judge Robertson links the definition of "sex" to sexual anatomy, his analysis, like those adopted by the Sixth and Eleventh Circuits, undermines the DOJ's conclusion and instead suggests that sex-segregated bathroom usage should be linked to biological sex.
Aside from citing these Title VII cases, DOJ also cited the Fourth Circuit's decision in G.G. v. Gloucester County School Board. Although DOJ states that the Fourth Circuit was interpreting the sex discrimination provision of Title IX, I don't think that is correct. In Gloucester, the Fourth Circuit was merely interpreting the Department of Education's regulation permitting single-sex facilities as an exception to the general prohibition against sex discrimination. In Gloucester, the Fourth Circuit deferred to the Department's interpretation of its own regulation. Thus, the Fourth Circuit agreed that the Department's regulation would not provide a defense to sex discrimination against transgender students with respect to bathroom access. However, the Fourth Circuit did not address whether, in the first instance, denying transgender students access to bathrooms consistent with their gender identity would violate Title IX. Rather, it merely concluded that, assuming such a practice does constitute sex discriminate, the Department's regulation would not provide a defense.
In accepting the Department's interpretation of its own regulation, the Fourth Circuit relied on the highly deferential standard of review established by the Supreme Court in Auer v. Robbins, 519 U.S. 452 (1997). If the Fourth Circuit had been interpreting Title IX's sex discrimination prohibition, the Department would not have been entitled to such a high level of deference, so it is clear that the Fourth Circuit could not have addressed the fundamental issue at the heart of the case.
Not surprisingly, North Carolina has filed a lawsuit arguing that its policy of designating bathroom usage by biological sex does not violate Title VII. The state's principal argument is that transgender status is not protected under Title VII. In so arguing, the state, like DOJ, focuses on the wrong issue in this dispute. The question is not whether discrimination based on transgender status constitutes sex discrimination since single-sex bathrooms, by definition, discriminate based on sex. Rather, the question is, When an employer is engaged in legally sanctioned sex discrimination between males and females, how do you identify whether a transgender individual is male or female? As I've explained, the Title VII cases cited in the DOJ letter suggest that the maleness or femaleness of a transgender individual depends on biology, not self-identification.
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.