Between 2009 and 2020, Josh published more than 10,000 blog posts. Here, you can access his blog archives.


Gender-Segregated Public Bathrooms

April 9th, 2015

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.


My New Five-Monitor Display and the Evolution of My Workstations

April 5th, 2014

Here is my latest setup. I have four 24″ HD LED flat-panels, mounted on two Dual-Monitor Desk Mounts. I rotated the one on the right, as it makes reading cases and document easier. And no, the palm trees are not native to Houston, but they make for a nice backdrop.


You can tour the evolution of my multi-monitor dislays over the years.

From June 2010, back in Johnstown, PA. Note that I still had paper. I’ve gone completely paperless, and it is amazing. Also, since then I’ve gotten rid of my Blackberry, and Google Reader is no longer.

On my laptop screen, I keep my e-mail window open. On the far left monitor, I have Pandora open (playing some catchy Lady GaGa song), Tweetdeck (featuring 2 twitter accounts and facebook), and Adium Chat. In the middle monitor I have Microsoft Word open (working on an Op-Ed for McDonald v. Chicago). On the monitor on the right, I have Google Chrome open (tuned to Google Reader). And, my blackberry keeps me posted with text messages and BBM (blackberry messenger for those uninitiated).

From 2012, when I moved to Houston, still with three monitors:

From December 2012, during a brief period I kept two MacBook Pros rocking, and I added (yet another) monitor.

In case you are wondering, each screen has a dedicated function. My MacBook Pro screen is always trained on my gmail. The screen furthest to the left holds my Tweetdeck and Instant Messaging. The next screen to the right holds whatever document, or documents I am reading. The main screen in the middle contains whatever I am typing. The screen furthest to the right contains my Google Reader. My old Macbook Pro is used for ancillary stuff or testing things, and sometimes I will play a video or something on my Nexus 7 Tablet.


At this point my only limitation is furniture.

I do think Farhad Manjoo has a point when he notes that two screens are not better than one. But it depends what you’re doing. Sometimes, if I am focusing on one document, I will leave all my other monitors blank. Other times, when I’m blogging, and need to work with several items at once, the monitors are indispensable. It’s the only way to supertask.

Philadelphia Inquirer Reviews Unprecedented

January 10th, 2014

The Philadelphia Inquirer offers this review of Unprecedented, as well as a discussion of my recent talk at the Philadelphia Lawyer’s Federalist Society Chapter (video here). Here is the intro:

Josh Blackman is a young, conservative law professor who has been getting plenty of attention for his history of the legal fight over Obamacare.

Legal experts across the spectrum, including Harvard University’s Lawrence Tribe and Georgetown University Law Center’s Randy Barnett, a leading libertarian, have heaped praise on Blackman’s book, Unprecedented: The Constitutional Challenge to Obamacare.

It provides a granular account of how the legal – and political – battle over the Affordable Care Act was joined, and how so much about the fight departed from past pattern.

So when Blackman walked to the lectern Monday in a conference room on the 26th floor of an office tower near Logan Square to address the city’s chapter of the conservative Federalist Society, the audience seemed ready to hang on every word.

But for conservatives, it wasn’t a happy talk. And maybe not for liberals, either.

All of 29 years old, Blackman – who did his undergraduate work at Pennsylvania State University, and clerked for U.S. District Judge Kim R. Gibson in Johnstown after graduation from George Mason University Law School – is a bit of a legal polymath. He can, with seeming ease, assimilate disparate streams of legal analyses, facts, political events, and government policy in service of his arguments.

I really enjoyed working with the author of the piece, Chris Mondics. He was a very careful journalist who took the time to make sure he got the law right.

The Resale Doctrine: Trader Joe’s Edition

August 28th, 2013

I am an unabashed fan of Trader Joe’s. I do nearly all of my shopping there. When I lived in Johnstown for two years, I would drive 90 minutes to Pittsburgh every week or so to stock up on groceries. In the month gap after I moved to Louisville, and before the first store opened, my diet suffered (I would stock up in Cincinnati when we had a sitting). When I first moved to Houston, I would drive nearly an hour to the only Trader Joe’s in the Woodlands. Fortunately, a month later, a store opened ten minutes away, which I frequent weekly. This store is awesome.

I have serious empathy for those who do not live near a TJ’s. Such as fine folks of Vancouver. But, there are TJ’s across the border in Washington. So one enterprising entrepreneur had a brilliant idea! Buy stuff in Washington, and schlep it across the border to resell it. The store is called Pirate Joe’s!

Hallatt decided to open a store in the affluent Vancouver neighborhood of Kitsilano. He named it “Pirate Joe’s.” Hallatt stocked his new store by making frequent trips across the border to Trader Joe’s around the city of Bellingham, Washington. Hallatt spent over $350,000 on Trader Joe’s items, including Charmingly Chewy Chocolate Chip Cookies, Milk Chocolate Covered Potato Chips, Gluten Free Rice Pasta, and Tea Tree Tingle Conditioner. Hallatt marks the products up by a couple of bucks and puts them on the shelves of Pirate Joe’s, where hungry Vancouverites have been snapping them up.

Genius! Canadians similarly buy milk at Washington Costcos, because it is much cheaper. But TJ’s isn’t happy. They are alleging trademark infringement. But, as Freakonomics notes, this is also an application of the resale doctrine.

Instead, PJ’s is reselling TJ’s popular merchandise. The ordinary rule of property is that once you purchase an item, it’s yours to use as you like. Or, to resell. This concept is the basis of a great American (and Canadian) institution: the yard sale.  And more recently, eBay.

Figures. A few years ago the Court considered a resale doctrine case involving my other favorite store, Costco.

Speaking of Trader Joe’s and Costco, Megan McArdle has an apt summary of my two favorite stores, in the context of why Wal-Mart can’t pay wages as high as Costco.

In other words, Trader Joe’s and Costco are the specialty grocer and warehouse club for an affluent, educated college demographic. They woo this crowd with a stripped-down array of high quality stock-keeping units, and high-quality customer service. The high wages produce the high levels of customer service, and the small number of products are what allow them to pay the high wages. Fewer products to handle (and restock) lowers the labor intensity of your operation. In the case of Trader Joe’s, it also dramatically decreases the amount of space you need for your supermarket … which in turn is why their revenue per square foot is so high. (Costco solves this problem by leaving the stuff on pallets, so that you can be your own stockboy).

Both these strategies work in part because very few people expect to do all their shopping at Trader Joe’s, and no one expects to do all their shopping at Costco. They don’t need to be comprehensive. Supermarkets, and Wal-Mart, have to devote a lot of shelf space, and labor, to products that don’t turn over that often.

Between Costco and TJ’s I can do all my shopping.

Sheetz v. WaWa

February 10th, 2013

sheetz-wawaPittsburgh and Philadelphia, though both within the same Commonwealth, may as well be on different continents. They are different politically, culturally, and perhaps most important, culinarily. You see, each city in Pennsylvania is ground zero for two warring convenience store chains.

In Pittsburgh, there is Sheetz (based in Altoona, right outside of State College). In Philadelphia, there is WaWa.

These are not regular convenience stores, like a 7-11. They are gas stations, shops, and 24-hour restaurants. They have  full menus, and can make really good food quickly, for a low price. And you order form a touch-screen, which has lots of options to customize your food. There is really nothing like it anywhere else in the country.

Among Pennsylvanians, there is a never-ending feud about which store is better. Even the New York Times dedicated an entire column to it!  The Times did have one funny line:

A political pollster in Harrisburg even surveyed Pennsylvanians on their favorite, though results were skewed because of Sheetz’s wider state footprint.

The colors of the dots on the map even work. Sheetz is from red-state Pittsburgh, and WaWa is from blue-state Philadelphia.

I am quite biased for Sheetz. I went to Penn State, and the founders of Sheetz were Nittany Lions. I also lived in Johnstown for two years, which had five or six Sheetz. Thus, I have something of a dislike for WaWa.

If you ever drive along the Pennsylvania Turnpike from one end of Pennsylvania to the next, you can judge where you are by the density of Sheetzs and WaWas.

Update: My friend Zak Slayback sent me a picture of a place in Johnstown where there are two Sheetzs across the street from each other. Zak said you can see the Sheetz from the parking lot of another Sheetz.