When I teach United States v. Virginia, I try to think of laws that involve gender classifications that would survive intermediate scrutiny. One of the the most useful examples I’ve come up with is a state policy of having separate bathrooms or locker rooms for men and women. I explain that a law providing for locker rooms segregated by race would easily flunk strict scrutiny. But locker rooms separated based on gender would survive intermediate scrutiny, right? In light of the developing caselaw in this arena, I don’t know if the answer will remain so clear. Two cases decided in the last week speak directly to this issue.
First, in an opinion by Judge Kim R. Gibson (for whom I clerked from 2009-11), the court rejected the claim of a transgender man who was denied access to the men’s bathroom and locker rooms at the University of Pittsburgh at Johnstown. Judge Gibson frames the issue in terms of the competing interest:
At the heart of this case are two important but competing interests. On the one hand is Plaintiff’s interest in performing some of life’s most basic and routine functions, which take place in restrooms and locker rooms, in an environment consistent with his male gender identity. On the other hand is the University’s related interest in providing its students with a safe and comfortable environment for performing these same life functions consistent with society’s long-held tradition of performing such functions in sex-segregated spaces based on biological or birth sex. Additionally, the Court finds controlling the unique contours under which this case arises. Namely, the context is a public university, whose mission is primarily pedagogical, but which is also tasked with providing safe and appropriate facilities for all of its students.
What is the state’s interest in favor of the sex-separated bathrooms? The court answers, allowing people to have a “safe and comfortable environment.” Why is excluding the plaintiff inconsistent with a “safe and comfortable environment”? The question can only be answered with the next rationale offered by Judge Gibson: because of “society’s long-held tradition of performing such functions in sex-segregated spaces based on biological or birth sex.” Substitute the word “sex-segregated spaces” with “marriage,” and you have a page out of the Respondents brief in the upcoming marriage cases. Gibson adds further, “separating students by sex based on biological considerations—which involves the physical differences between men and women—for restroom and locker room use simply does not violate the Equal Protection Clause.”
If the Court holds this June that LGBT status is given heightened scrutiny under the equal protection clause, I don’t think these rationales will work anymore. I can see the government’s reply to this argument–the belief that the plaintiff’s presence in the bathrooms would eliminate this “safe and comfortable environment” is based on stereotypes and antiquated notions of socially-constructed gender roles.
The University offered this defense: “its policy is based on the need to ensure the privacy of its students to disrobe and shower outside of the presence of members of the opposite sex.” But this begs the question. Why is the desire of some to disrobe around people of the opposite sex warranted in justifying this form of discrimination?
Another possible rationale is that the state claims that excluding transgender people from the bathroom can be used to prevent sexual gratification. This conflates gender identity and sexual orientation–they are not always connected–and again reinforces stereotypes about sexual attraction based on so-called antiquated mores.
Even though there are physical differences between men and women, can’t the state achieve a more narrowly tailored solution by installing stalls in the bathroom to permit those who want privacy to have privacy, and those who don’t to use the open space? Unisex bathrooms may be reasonable accommodations, but still have the effect of stigmatizing and othering people like the Plaintiff in this case who declined to use a single-occupancy bathroom. The Virginia Military Institute created accommodations for female cadets. Why can’t the same be done in public bathrooms and locker rooms? If the doctrine continues to develop in the direction it is currently developing, I don’t see how public bathrooms can continue to exist as they do now.
Relatedly, the Times offers this story from the White House:
Officials also announced the creation of an “all-gender restroom” in the Eisenhower Executive Office Building, where many of the White House staff members work, to provide an additional option for transgender individuals who are not comfortable using either the men’s or women’s restrooms.
The second case of note involves not the Equal Protection Clause, but Title VII and bathrooms. Title VII, unlike the equal protection clause, applies to private businesses. As Chris Geidner reports, the EEOC held that “some of the most common problems transgender people face in the workplace — including bathroom restrictions” violate Title VII.
Lusardi was forced to use a single-user restroom and not the women’s restroom after transitioning in 2010. On the occasions when she used the women’s restroom — when the single-user restroom was out of order or being cleaned — she was confronted by a supervisor….
In the EEOC decision, provided to BuzzFeed News by Lusardi’s lawyers, the independent agency found that in addition the disparate treatment violation of Title VII, the Army also was guilty of harassment, subjecting her to a “hostile work environment based on sex” due to the restroom restrictions and by allowing the misgendering to continue “well after [the supervisor] was aware that [Lusardi]’s gender identity was female.”
(Three years ago, the EEOC took the position that discrimination against transgender people is a form of sex discrimination under Title VII. Just last week, DOJ filed suit against Southeastern Oklahoma State University, which allegedly denied tenure to a professor over her identity as a transgender woman.)
As I read the opinion, no medial procedure is necessary for a person to establish a gender identity, and others are prohibited from discriminating on this basis–including by denying access to a bathroom.
“Nothing in Title VII makes any medical procedure a prerequisite for equal opportunity (for transgender individuals, or anyone else),” the opinion states. “An agency may not condition access to facilities — or to other terms, conditions, or privileges of employment — on the completion of certain medical steps that the agency itself has unilaterally determined will somehow prove the bona fides of the individual’s gender identity.” …
Later, when discussing the Army’s claim that it restricted Lusardi’s restroom use due to potential discomfort of other employees, the EEOC found that “supervisory or co-worker confusion or anxiety cannot justify discriminatory terms and conditions of employment. … Allowing the preferences of co-workers to determine whether sex discrimination is valid reinforces the very stereotypes and prejudices that Title VII is intended to overcome.”
In a somewhat cryptic-comment, after noting the ebullience of the plaintiff and Transgender Law Center, Geidner suggests that not everyone in the LGBT community may be happy with the ruling:
It was not immediately clear how the EEOC decision will be received by government agencies and LGBT organizations. When the Macy decision came down in 2012, there initially was some reticence from other LGBT groups to discuss the ruling’s potential impact and from some areas of the federal government to apply the ruling to related legal provisions. Eventually, though, almost all LGBT groups and federal agencies joined in pressing the case that Title VII’s sex discrimination ban includes anti-transgender discrimination.
What is this “reticence” to discuss the “potential impact” of the law? Geidner does not say.
Judge Gibson’s opinion recognizes, implicitly, that this may not be the rule of law for long:
At the outset, the Court notes that society’s views of gender, gender identity, sex, and sexual orientation have significantly evolved in recent years. Likewise, the Court is mindful that the legal landscape is transforming as it relates to gender identify, sexual orientation, and similar issues, especially in the context of providing expanded legal rights. Within the context of these expanding rights and protections arises the profound question of self-identify, as exemplified by this case. But, while this case arises out of a climate of changing legal and social perceptions related to sex and gender, the question presented is relatively narrow and the applicable legal principles are well-settled.
As I’ve noted before, the Court’s upcoming decision on same-sex marriage is a lot harder than most people acknowledge.