LGBT advocates have argued that designating bathroom access on the basis of biological sex rather than gender identity constitutes unlawful sex discrimination against transgender individuals. In making this argument, advocates have relied almost exclusively on the Supreme Court's decision in Price Waterhouse v. Hopkins and on lower courts interpreting that decision in holding that discrimination against a transgender individual for being transgender constitutes impermissible sex stereotyping in violation of Title VII.
For Price Waterhouse to provide support for bathroom access based on gender identity rather than biological sex, it obviously must say something more than that it is unlawful to treat biological men better than biological women. The EEOC, for instance, has concluded that, pursuant to Price Waterhouse, Title VII's prohibition against sex discrimination necessarily encompasses more than discrimination based on biological sex and must encompass discrimination based on "gender":
That Title VII's prohibition on sex discrimination proscribes gender discrimination, and not just discrimination on the basis of biological sex, is important. If Title VII proscribed only discrimination on the basis of biological sex, the only prohibited gender-based disparate treatment would be when an employer prefers a man over a woman, or vice versa.In Hively, however, the majority clearly rejected this far-reaching interpretation of Price Waterhouse, holding that unlawful sex stereotyping merely involves discrimination on the basis of the "victim's biological sex (either as observed at birth or as modified, in the case of transsexuals)" -- in other words, treating a masculine biological man better than a masculine biological woman.
All of this is not to say that transgender bathroom access is necessarily outside the scope of Title VII. Only that it is not supported by the current case law, and advocates would be foolish not to change tacks. I've made this argument before, including in this post, as I had thought it already crystal clear that relying on Price Waterhouse to support transgender bathroom access is a non-starter. Now, with Hively's explanation that sex stereotyping merely involves discrimination based on biological sex, let us hope that LGBT advocates finally see the light.
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.