Although LGBT advocates have roundly criticized a recent Trump administration Dear Colleague Letter for backtracking on the issue of transgender bathroom access, the administration was justified in faulting the rescinded guidance for lacking "extensive legal analysis" and for failing to explain how the guidance is "consistent with the express language of Title IX." I don't dispute that those favoring transgender bathroom access have the moral high ground, but sometimes it is not enough for the force to be with you. You also need a sound legal argument.
Unfortunately, rather than being deterred by the rescission of the guidance, the parties appear to be proceeding full steam ahead in Gloucester County School Board v. G.G., in which a transgender boy, Gavin Grimm, is seeking access to the boys' bathroom at his high school. As discussed below, the legal analysis in the rescinded guidance -- a Department of Education opinion letter dated January 7, 2015, and an Obama administration Dear Colleague Letter dated May 13, 2016 -- is deeply flawed. Because the rescinded guidance tracks the analysis adopted by counsel for Grimm and by LGBT advocates, I think advocates would do well to use this opportunity to go back to the drawing board.
Imagine that Jane is sexually harassed by her bisexual supervisor, John. He threatens to fire her if she does not have sex with him. Has Jane been subjected to discrimination because she is female? The answer is no, because John is bisexual, and he therefore might have targeted Jane's male coworker with sexual advances. Thus, in Holman v. Indiana, the Seventh Circuit affirmed the dismissal of a sexual harassment claim filed by a married couple who alleged that their joint supervisor directed sexual proposals at both of them.
But suppose that John, though bisexual, is only sexually attracted to African Americans, and he propositioned Jane, in part, because she is African American. Meet the racist bisexual harasser. His conduct does not discriminate based on sex, but it does discriminate based on race.
As you might have guessed, the state secrets doctrine protects against the disclosure of state secrets -- "military matters which, in the interest of national security, should not be divulged." In Abilt v. Central Intelligence Agency, No. 15-2568 (4th Cir. Feb. 8, 2017), that doctrine was the undoing of covert agent Jacob Abilt -- not his real name -- who alleged that the CIA unlawfully discriminated against him based on his disability, including by canceling his assignment to a warzone.
In Fisher v. Lufkin Industries, Inc., No. 15-40428 (Feb. 10, 2017), the Fifth Circuit overlooked agency principles in mistakenly concluding that the "cat's paw" theory applies in the same manner to the discriminatory actions of a coworker as it does to the discriminatory actions of a supervisor acting in his official capacity.
Were Supreme Court nominee Neil Gorsuch to have his druthers, courts would ditch the McDonnell Douglas framework. Adopted by the Supreme Court in 1973 in the case of McDonnell Douglas Corp. v. Green, the eponymously named framework is used by courts and juries to evaluate whether a plaintiff's evidence is sufficient to establish that he or she was subjected to intentional discrimination in violation of Title VII of the Civil Rights Act of 1964 or another EEO law. It is hard to overstate the central role played by the McDonnell Douglas framework in the litigation of EEO claims. Doing away with it would be earth-shattering. Extraordinary changes require extraordinary reasons, and as discussed below, I don't believe Gorsuch has provided extraordinary reasons.
 |
| No penis phobia here |
There is an outside chance that Supreme Court nominee Neil Gorsuch will be confirmed by the Senate in time to hear oral arguments at the end of March in Gloucester County School Board v. G.G., in which a transgender boy has alleged that he was subjected to sex discrimination in violation of Title IX of the Education Amendments of 1972 when his school denied him access to the boys' bathroom.
In 2009, Gorsuch was a member of a three-judge panel in Kastl v. Maricopa County Community College, 325 F. App'x 492 (9th Cir. 2009), which rejected Rebecca Kastl's claim that she was subjected to sex discrimination when she was denied access to the women's bathroom before she had gender reassignment surgery. (Gorsuch ordinarily sits on the 10th Circuit, but was serving as a visiting judge in this case.) The court concluded that Kastl had presented a facial case of sex discrimination but that she could not refute the employer's assertion that it had banned her from the women's restroom for safety reasons.
