Judge Schroeder noted that Part I of North Carolina's Public Facilities & Privacy Security Act, commonly known as House Bill 2 (HB2), requires public agencies to ensure that multiple-occupancy bathrooms and similar facilities are designated for use by individuals based on their "biological sex," which is defined as the sex listed on their birth certificate. In Judge Schroeder's view, this provision conflicts with Title IX's general prohibition against sex discrimination, and therefore, sex-segregated bathrooms violate Title IX unless there is an applicable exception.
The only possible exception that might apply is Department of Education regulation 34 C.F.R. § 106.33, which provides:
A recipient [of federal funds] may provide separate toilet, locker room, and shower facilities on the basis of sex, but such facilities provided for students of one sex shall be comparable to such facilities provided for students of the other sex.In G.G. v. Gloucester County School Board, 822 F.3d 709 (4th Cir. 2016), the Fourth Circuit held that a Department of Education opinion letter interpreting section 106.33's application to transgender students was entitled to controlling weight. Under that interpretation, a school is generally required to treat students consistent with their gender identity.
Thus, as explained by Judge Schroeder, Part I of HB2 appears to violate Title IX when applied to transgender students:
Because the provision of sex-segregated facilities necessarily requires schools to treat individuals differently depending on their sex, Part I falls within Title IX's general prohibition against sex discrimination. . . . [A]lthough Part I is consistent with the DOE opinion letter when applied to most students, it is inconsistent with the DOE opinion letter as applied to the individual transgender Plaintiffs, whose birth certificates do not align with their gender identity. As a result, Part I does not qualify for the regulatory exception -- as interpreted by DOE -- and therefore appears to violate Title IX when applied to the individual transgender Plaintiffs.If Judge Schroeder's reasoning is extended to Title VII of the Civil Rights Act of 1964 -- and there is no reason that Title VII should be analyzed differently than Title IX in this instance -- then it would appear that sex-segregated workplace bathrooms are unlawful. Unlike Title IX, there does not appear to be any exception, regulatory or statutory, that would exclude otherwise prohibited sex-segregated facilities from coverage under Title VII's general prohibition against sex discrimination.
Of course, Judge Schroeder's analysis cannot be rejected merely because it has broad implications for other laws prohibiting sex discrimination. Nevertheless, as noted by Judge Schroeder, none of the parties challenged the existence of sex-segregated facilities, and indeed, all agreed that such facilities promote important privacy interests. The only dispute was whether transgender individuals should be allowed to use sex-segregated facilities that correspond to their gender identity, regardless of their biological sex. Under Judge Schroeder's analysis in Carcaño, however, it may not be possible to have it both ways.
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.