Sunday, September 6, 2020

Bostock and Transgender Bathroom Access: A Simple Explanation Why Courts Are Wrong

Recently, two U.S. courts of appeals mistakenly relied on
Bostock v. Clayton County to conclude that denying bathroom access to transgender individuals consistent with their gender identity is unlawful sex discrimination -- Grimm v. Gloucester County School Board (4th Cir. Aug. 26, 2020) and Adams v. School Board (11th Cir. Aug. 7, 2020). 

A simple example illustrates why these courts have erred: If employers are required to allow transgender bathroom access, then what happens when an employer has a valid reason for assigning workers based on sex to perform job duties, such as with locker room attendants?

Although the Supreme Court concluded that it is unlawful for an employer to fire someone simply for being gay or transgender, it reached that conclusion based on the assumption that "sex" under Title VII of the Civil Rights Act of 1964 refers only to biological sex. As explained by the Court, firing a gay man for being gay is sex-based discrimination because the employer has treated a man who is sexually attracted to men worse than a woman who is sexually attracted to men. Similarly, firing a transgender man for being transgender is sex-based discrimination because the employer has treated someone who was identified as female at birth (i.e., someone who is biologically female) and now identifies as male worse than an individual who was identified as male at birth (i.e., someone who is biologically male) and now identifies as male.

How does this reasoning affect the case of single-sex locker rooms and bathrooms? The answer is that it does not.

Suppose a gym is deciding whether it can refuse to assign a male employee to clean and monitor the women's locker room. Under Title VII, it is lawful for an employer to make sex-based decisions in the rare cases where sex is a "bona fide occupational qualification." Courts and the EEOC have recognized bodily privacy as a legitimate reason for making sex-based decisions. If "sex" means biological sex, as the Court assumed in Bostock, then a transgender woman is considered male for purposes of Title VII. As a result, if it is lawful to refuse to assign a cisgender man to monitor the women's locker room, it is also lawful to refuse to assign a transgender woman to do so, since both are male insofar as Title VII is concerned. 

As the Fourth and Eleventh Circuits would have it, though, a gym would violate Title VII by requiring a transgender female employee to use the men's locker room to address bodily functions. That makes no sense whatsoever. If an employer can assign someone to work in a particular location based on biological sex because of concerns about bodily privacy, then surely it also can assign the same individual to bathroom facilities based on biological sex. Otherwise, the individual would perform work duties in one locker room and then visit the other locker room to answer the call of nature.

Justice Sotomayor clearly recognized this issue in the oral argument in R.G. & G.R. Harris Funeral Homes v. EEOC.  As she explained to Aimee Stephens's counsel: The "hard question" is how to deal with "women who are made uncomfortable, and not merely uncomfortable, but who would feel intruded upon if someone who still had male characteristics walked into their bathroom. That's why we have different bathrooms." But she explicitly rejected the employer's contention that ruling for Stephens would mean that a transgender woman is male for purposes of Title VII's BFOQ exception: 

No. What they're doing is saying if there is an independent reason why a man who's transgendered can't have a job that a woman has, then that reason is good enough, you don't have to hire them.

But if there is no reason why your gender should marry in the work you are doing, why should you not be hired?

Note that Sotomayor refers to a transgender woman as a "man who's transgendered." In other words, a transgender woman is still male and would not be entitled to a job that is not available to other men.

The Bostock decision has been hailed as a huge victory for LGBT rights, but its limitations cannot be ignored. It can hardly be seen as a tremendous shift in judicial thinking when the most liberal Justice -- Sotomayor -- had misgivings about allowing individuals with "male characteristics" access to the women's bathroom. Rather, it was only possible because of close adherence to legalistic principles of statutory interpretation and because it avoided the "hard question" of bathroom access.  

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.