Saturday, February 4, 2017

Judge Gorsuch and Penis Phobia

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.

In a Slate article discussing Gorsuch's likely approach to LGBT issues, Mark Joseph Stern characterizes the Kastl decision as "troubling." In Stern's view:
An unsubstantiated, irrational fear of trans people in bathrooms should not be considered a legitimate basis for workplace mistreatment, and Gorsuch's vote to the contrary casts doubt on his willingness to thoroughly scrutinize the real intent behind laws like North Carolina's HB2 [the "bathroom bill"].
Although I too am skeptical of the reasoning in Kastl, I nevertheless think that Stern is a bit of an alarmist. Kastl was issued in 2009, and that's ancient history when it comes to LGBT rights. Remember that President Barack Obama did not endorse same-sex marriage until 2012. Public support for transgender rights tends to lag behind support for gay and lesbian rights. And when it comes to transgender rights, bathroom access has been the area in which there has been the most public resistance. It also should be noted that the other two judges on the panel, M. Margaret McKeown and Betty Fletcher, were appointed to the bench by Democratic Presidents. Judge Gorsuch's rejection of transgender bathroom access was hardly an outlier position.

I personally don't understand the concerns that some individuals, particularly women, may have sharing a bathroom with someone they believe to be of the opposite sex. On the other hand, I'm reluctant to dismiss those concerns altogether, if only because they do seem to actually exist. It was undisputed in Kastl that female students had raised concerns about their privacy and safety in having to share the women's bathroom with an individual that they perceived to be male. I also remember a conversation I had with a female friend about 10 years ago in which she was adamant that she felt it made a difference whether a transgender woman still had male genitalia. And I think it significant that two of the three Kastl judges that endorsed the defendant's safety rationale were women.

Frankly, I doubt that Kastl tells us much, if anything, about how Gorsuch would rule on the issue of transgender bathroom access. It is true that Gorsuch did not buck the trend and pen the transgender equivalent of Brown v. Board of Education. But it is wrongheaded to fault Gorsuch for not disagreeing with the two female judges who rejected Kastl's claim. Had he done so, he may have been vulnerable to criticism that, as a man, he was not sufficiently sympathetic to women's concerns about sexual violence. Didn't Joseph Heller coin a term for this kind of situation?

(For my views on whether denying bathroom access based on gender identity constitutes sex discrimination -- maybe, but not for the reasons usually provided by advocates -- please see my previous posts here, here, and here.) 

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.