Friday, October 7, 2016

Roberts v. Clark Cnty. Sch. Dist.: Barring a transgender man from all single-sex restrooms is not the same as barring him from just the men's room

In Roberts v. Clark County School District, No. 2:15-cv-00388-JAD-PAL (D. Nev. Oct. 4, 2016), District Court Judge Jennifer Dorsey granted summary judgment to Bradley Roberts, a transgender male police officer, on his claim that he was subjected to sex discrimination when he was denied access to either the women's or the men's restroom and was required to use gender-neutral restrooms.
Although this decision is sure to be hailed by transgender rights activists, its application to other cases is severely limited by the fact that Roberts was barred from all single-sex restrooms. As a result, this decision offers little, if any, guidance as to whether transgender individuals are entitled to use single-sex restrooms consistent with their gender identity, rather than their biological sex. Indeed, in concluding that Roberts was treated differently based on sex, the court pointed to the fact that Roberts was denied access to both the women's restroom and the men's restroom:
The school district contends that Roberts was not treated differently than similarly situated employees because his anatomy made him a female, and other females were not permitted to enter the men's restroom. But Roberts was not allowed to use the female bathroom either -- so he was treated differently than other females.
By contrast, in G.G. v. Gloucester County School Board, which is probably the most prominent case addressing the issue of transgender bathroom access, the defendant has allowed the plaintiff, a transgender male student, to use either the girls' bathroom or single-sex bathrooms. The Roberts decision does not address the question raised in G.G.: whether denying transgender individuals access to single-sex restrooms consistent with their gender identity constitutes sex discrimination.

Finally, it is worth noting that Judge Dorsey's reliance on the Ninth Circuit's decision in Kastl v. Maricopa County, 325 F. App'x 492 (9th Cir. 2009), largely undermines the argument for bathroom access based on gender identity. In Kastl, the court held that evidence that an employer denied a transgender woman access to the women's restroom established a prima case of sex discrimination, but the court credited as nondiscriminatory the defendant's assertion that it denied the plaintiff access because of safety concerns in allowing a biological male to use the women's restroom.

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.