For a brief time in early 2017, before Gorsuch was sworn in, the Court was slated to take up that issue in a case brought by high school student Gavin Grimm, a transgender male, but the Court ended up sending Grimm's case back to the lower courts without addressing the merits. A little more than a year later, on May 22, 2018, Federal District Court Judge Arenda L. Wright Allen refused to dismiss Grimm's claim that the Gloucester County School Board's policy of assigning bathroom access based on "biological gender" constituted unlawful sex discrimination under Title IX of the Education Amendments Act of 1972. Before too long, the Supreme Court is likely to once again be facing the thorny issue of transgender bathroom access. Unfortunately for transgender individuals, if Justice Gorsuch's concurrence in Masterpiece Cakeshop is any guide, they will face a daunting challenge.
To establish that a policy of assigning bathroom access on the basis of biological gender constitutes unlawful sex discrimination, whether in the educational context or in the employment context, a plaintiff has to show, first, that discrimination based on transgender status constitutes sex discrimination and, second, that basing bathroom access on biological gender unlawfully discriminates against transgender individuals based on their transgender status. When courts have ruled that a bathroom policy discriminates based on transgender status, they have only considered the first issue, whether discrimination based on transgender status constitutes sex discrimination, and they have neglected the second, merely assuming that a policy like the one adopted by the Gloucester County School Board discriminates based on transgender status. For instance, relying on a Seventh Circuit decision, Judge Wright Allen concluded that Grimm had sufficiently pled sex discrimination in alleging that he was required to use bathrooms not in conformity with his gender identity, thus subjecting him to different treatment than non-transgender students. The flaw in this analysis is readily apparent upon consideration of Justice Gorsuch's concurrence in Masterpiece Cakeshop, which was joined by Justice Samuel Alito.
As explained by Gorsuch, the record showed that Jack Phillips would not sell a cake celebrating a same-sex wedding to anyone, regardless of the individual's sexual orientation. Although he may have been aware that his refusal had the effect of leaving gay men and lesbians underserved, there was no evidence that he refused to serve them because of their sexual orientation. Rather, it was because of his religious objection to same-sex marriage.
Similarly, the Gloucester County School Board assigns bathrooms and other sex-segregated facilities by biological gender, regardless of an individual's gender identity. The effect of this policy, as Judge Wright Allen observed, is to allow non-transgender students to use facilities consistent with their gender identity, but to deny transgender students the same right. In adopting this policy, the school board was presumably motivated by the desire to protect the bodily privacy interests of all students, not to deny transgender students a benefit that is provided to non-transgender students. In other cases, where schools have chosen to allow bathroom access consistent with gender identity, the effect is to require non-transgender students to share facilities with individuals of another biological gender. If the Gloucester County School Board's policy discriminates against transgender students, then don't these alternative policies discriminate against non-transgender students?
A biological-gender bathroom policy also has the effect of allowing gay and lesbian students to share facilities with individuals of the biological gender to whom they are sexually attracted and the effect of requiring heterosexual students to share facilities with other students who are sexually attracted to members of their biological gender. Does this mean that the policy discriminates against heterosexual students, either by not allowing them to share facilities with individuals to whom they are sexually attracted or by violating their right to bodily privacy? If assigning bathroom access based on biological gender discriminates because of transgender status, then it would seem to discriminate no less because of heterosexual status.
As Justice Gorsuch observed: "The law . . . sometimes distinguishes between intended and foreseeable effects. Other times, of course, the law proceeds differently, either conflating intent and knowledge or presuming intent as a matter of law from a showing of knowledge." Although prohibitions against sex discrimination, including Title IX and Title VII, typically fall into the former category, this fact has been largely overlooked in challenges to bathroom policies.
To be sure, an actor's awareness that his action will disproportionately harm members of a protected group, such as transgender individuals, may be evidence that the actor intended to discriminate against members of that protected group. On the other hand, if there is evidence of a nondiscriminatory motive, as there generally will be with respect to a bathroom policy, then the mere fact that an entity took an action in spite of its effects on a protected group will not be enough to show that the entity acted because of the effects on a protected group. The failure to recognize this crucial difference is reflected in the legal reasoning in Judge Wright Allen's decision where she assumes that the Gloucester County School Board's policy necessarily discriminates on the basis of gender identity merely because of its effect on transgender individuals.
Although prohibitions against sex discrimination are typically not limited to intentional discrimination, it seems doubtful that a sex discrimination claim could be based solely on the disparate effects of a policy on transgender individuals. From all appearances, arguments that transgender status discrimination constitutes sex discrimination have been limited to theories of intentional discrimination. And for good reason -- a policy that merely has a disparate impact on transgender (or nontransgender) individuals does not discriminate against males or females. In the view of Judge Wright Allen and quite a few other judges, discrimination based on transgender status constitutes sex discrimination because it is a form of gender stereotyping, akin to discriminating against a man because he is effeminate or a woman because she is masculine. Thus, intentionally discriminating against an individual based on his or her gender identity is sex discrimination because it necessarily means that the individual is treated differently because of that individual's maleness or femaleness. By contrast, even if a practice, such as a bathroom policy, disproportionately harms transgender individuals as a group, it does not necessarily disproportionately harm male bathroom users or female bathroom users, any more than it necessarily disproportionately harms African American bathroom users or white bathroom users.
Equitable arguments may very well favor segregating facilities by gender identity, but it does not follow that a contrary policy violates prohibitions against sex discrimination. If claims challenging bathroom policies are to succeed where it ultimately matters -- before the Supreme Court -- then LGBT advocates would do well to heed Justice Gorsuch's concurrence and grapple with the crucial distinction between intended and foreseeable effects.
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.