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Explaining bathroom bills, transgender rights, and equal protection

May 6, 2016 by Lana Ulrich


Lana Ulrich, associate in-house counsel at the National Constitution Center, looks at the detailed arguments in the debate over transgendered persons, laws that determine how they can access public bathrooms, and issues about privacy rights.
Gavin Grimm. Photo: ACLU

Public bathrooms have become the latest frontier in the LGBT rights movement. At least a dozen states, including North Carolina, have passed laws removing anti-discrimination protections for LGBT people; and some include “bathroom bills” requiring that the bathrooms a person uses is determined by his or her biological gender at birth.

LGBT and liberal groups like the ACLU have decried these laws as discriminatory against transgendered persons, while conservative groups have voiced support for these laws as protecting privacy rights. These measures implicate important equal protection issues under the Constitution as well as federal laws like Title VII and Title IX that prohibit discrimination on the basis of sex.

For instance, on May 4, the Justice Department’s Civil Rights Division wrote a letter to North Carolina advising Governor McCrory that its law, HB-2, violated civil rights laws including Title VII, and that the state had until Monday to abandon the measure or else risk losing federal funding.

On May 9, North Carolina and the Justice Department filed “dueling lawsuits” over HB-2, with each filing a complaint against the other only several hours apart. In the suit against DOJ, Gov. McCrory and Secretary of Public Safety Frank Perry on behalf of North Carolina accused the federal government of “baseless and blatant overreach” in “an attempt to unilaterally rewrite long-established federal civil rights law in a manner that is wholly inconsistent with the intent of Congress and disregards decades of statutory interpretation by the Courts.”

Meanwhile, DOJ’s suit against North Carolina—which also names the state’s department of public safety, and the University of North Carolina and the school’s board of governors—argues that the measure is discriminatory and violates civil rights laws including Title VII, Title IX, and the Violence Against Women Reauthorization Act (VAWA). Gov. McCrory insists that the lawsuit was filed to seek clarity on the issue, while Attorney General Loretta Lynch says that no clarification on federal civil rights laws is needed.

The Grimm Ruling

The fight over bathroom use and LGBT rights has been playing out at the local level as well, in public schools throughout the country. The Fourth Circuit recently handed down an important ruling on this issue in Grimm v. Gloucester Country School Board, a case concerning a boy’s right to use the boys’ restroom.

Gavin Grimm, 16, a transgender boy, was diagnosed with gender dysphoria, and as part of his treatment his therapist recommended that he begin “living in accordance with his gender identity in every possible respect, including using the appropriate restroom.” Grimm was initially allowed to use the boys’ restroom, but after several parents complained, the school held several meetings and debates and then issued a policy stating that the use of boys’ and girls’ restroom and locker rooms “shall be limited to the corresponding biological genders, and students with sincere gender identity issues shall be provided an alternative private facility.” Grimm, who identifies as male but has not yet had sex reassignment surgery, was designated female under the policy. As an alternative to the girls’ restroom, the school provided a unisex or gender-neutral bathroom that Grimm and any other student could use.

The ACLU sued the school on behalf of Grimm, arguing the policy violated Title IX of the Educational Amendments Act of 1972, which prohibits discrimination on the basis of sex in any educational program that gets federal funding.  They argued for Grimm’s ability to use the boys’ bathrooms as well as a preliminary injunction to allow him to use the bathroom while his case proceeded.

The Department of Education (DOE) regulations implementing Title IX specifically allow schools to provide separate restrooms on the basis of sex. But in 2015, the DOE issued a memo saying that when a school decides to treat students differently on the basis of sex, it “generally must treat transgender students consistent with their gender identity.” The ACLU emphasized this interpretation as part of Grimm’s Title IX claim. The complaint also argued that the policy violated Grimm’s rights under the Equal Protection Clause of the 14th Amendment.

The district court for the Eastern District of Virginia dismissed Grimm’s Title IX claim and denied his request for a preliminary injunction, without ruling on his Equal Protection claim. But the Fourth Circuit reversed and remanded, granting the DOE’s interpretation Auer deference and finding that a Title IX claim could be made, and ruling that a new decision on the injunction was warranted.

In response to the Fourth Circuit’s ruling, Josh Block, Grimm’s ACLU attorney, said: “With this decision, we hope that schools and legislators will finally get the message that excluding transgender kids from the restrooms is unlawful sex discrimination.”  Commenting on his own case, Grimm said: “Matters like identity and self-consciousness are something that most kids grapple with in this age range. When you’re a transgender teenager, these things are often very potent. I feel humiliated and dysphoric every time I’m forced to use a separate facility.” The school district is currently seeking a rehearing en banc to review the ruling.

In Grimm, Judge Niemeyer dissented, writing: “This holding completely tramples on all universally accepted protections of privacy and safety that are based on the anatomical differences between the sexes. . . . [and] overrules custom, culture, and the very demands inherent in human nature for privacy and safety, which the separation of such facilities is designed to protect.” This rationale for biological separation of bathrooms was also cited by Gov. McCrory when he signed HB-2 into law, arguing that the bathroom provision was necessary to prevent local governments from allowing “a man to use a woman’s bathroom, shower or locker room.”

Groups like the Alliance Defending Freedom (ADF) support policies like that of the Gloucester County School Board and bills like North Carolina’s HB-2. Like Judge Niemeyer and Gov. McCrory, Members of the ADF argue that society—as well as Title IX—has always recognized the innate differences between men and women and has respected those differences by providing separate facilities for showering, changing, and using the restroom. These policies and bills protect people’s right to privacy and particularly the right for children in a school setting to not be exposed to the private anatomy of the opposite sex.

Other Federal Cases

These groups are on the offensive as well, and have become plaintiffs in suits challenging federal regulations that require schools to bend their bathroom policies to the newly clarified federal standards. In Students and Parents for Privacy v. United States Department of Education, a group of roughly 50 suburban families have filed suit against their Illinois school district, the Department of Education and the Justice Department, alleging that the district is violating students’ privacy and safety by allowing transgender students to use restrooms and locker rooms of the gender with which they identify. The Department of Education had warned the school that it was violating Title IX when it did not allow a transgender student who identifies as a girl to use the girls’ locker room without restriction. At risk of losing $6 million in federal funding, the school entered into an agreement that allows students to use the facilities corresponding to their gender identity. The lawsuit argues that this policy continues “to trample students’ privacy and other constitutional and statutory rights by forcing 14- to 17-year-old girls to use locker rooms and restrooms with biological males.”

These cases are significant because they are about much more than bathroom use: They concern the fundamental liberties of privacy, equality, dignity, and identity, and they implicate the ever-present challenge in law to balance and to protect these liberties against competing rights and concerns. For example, Title IX is an important element of the public school cases in particular, but these cases also have broader implications for the equal protection rights of transgender students and individuals as well as the privacy rights of students everywhere. The equal protection issue is still outstanding in Grimm, and how the court rules on it may be influential on other LGBT cases.

The Debate On The Issue

During a podcast on this case, Josh Block, who represented Grimm, debated Matt Sharp, a lawyer for the ADF, who has helped draft model policies such as the one at issue in Grimm. In addition to the privacy implications, application of administrative law principles, and legal precedents under Title VII and Title IX, they discussed the equal protection issue and the competing interests at stake: between Grimm’s right to his own gender identity and expression, and another student’s right to privacy in a restroom from a person of a different biological sex.

Block explained that the same principles that prohibit sex discrimination against trans people under Title VII and Title IX also prohibit it under the equal protection clause. And under equal protection, if there is a sex classification, it must meet intermediate scrutiny, or be substantially related to an important governmental interest, including appropriate tailoring. But these policies are blanket prohibitions, regardless of the facts on the ground and lack of evidence showing that there are any safety concerns involved with trans students using either restroom. Hence, equal protection requires that bathrooms be made available based on gender identity.

But Sharp countered that the equal protection argument boils down to whether Grimm is being treated differently than any other biological female. He argued that he was not, since the policy is facially neutral and Grimm is welcome to use either the girls’ restroom or the unisex restroom like any other female. Sharp also disagreed with Southern District of New York Judge Jed Rakoff’s 2015 ruling that gender identity or transgendered individuals constitute a “quasi-suspect” class, and pointed out that other circuits (and the Supreme Court) have not adopted this interpretation.

Absent recognition of LGBT as a suspect class, the assertion of transgender rights under the Due Process or Equal Protection Clauses may rely on the equality and dignity formulations of Obergefell v. Hodges (2015).

In Obergefell, Justice Kennedy’s majority opinion explained that “[t]he Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity.” Hence, the liberties protected by the 14th Amendment extend to “intimate choices that define personal identity and beliefs.” Law professor Lawrence Tribe has celebrated that “Obergefell’s chief jurisprudential achievement is to have tightly wound the double helix of Due Process and Equal Protection into a doctrine of equal dignity,” and the decision’s establishment of same-sex couples’ freedom to marry was “understood by all to directly redress the subordination of LGBT individuals.”

And Scott Skinner-Thompson, associate law professor at NYU, has noted the case’s potential implications for trans rights: “The court’s recognition that both due process and equal protection require that individuals be permitted to self-determine—to define and express themselves—has unmistakable extension to rights for the transgender community. . . . . Understanding that transgender identity is, in part, about access to the ability [to] express and define oneself makes the relationship between the court’s ruling and transgender rights clear.”

Perhaps in a decision with more emphasis on equality than dignity under a right to “equal dignity,” LGBT rights would prevail. But as equal protection jurisprudence continues to develop and to blend with due process jurisprudence (coupled with the demise of tiered scrutiny under the federal constitution—and potentially yielding a “new equal protection jurisprudence”) the underlying issue in bathroom cases may be on how to properly balance the personal privacy, personal dignity, or free exercise rights of some individuals with the equal dignity or identity rights of transgendered individuals.

This begs the question: who should accommodate whom? Should transgendered students of a different biological sex—like Gavin Grimm—be required to use accommodations like single-stall bathrooms in order to protect the privacy needs of their fellow students?

Or, as is the case in First Amendment law, should students that are uncomfortable with a trans student in the locker room be required to use a separate stall, or to “avert their eyes,” as Justice Harlan wrote in Cohen v. California, to avoid what might potentially make them uncomfortable?

A transgender student could be stigmatized by having to use a separate stall; or a student seeking privacy could be stigmatized as “transphobic” by opting to use a separate stall. Should a court reject a pseudo-“heckler’s veto” in this context, to protect the transgendered person’s right same right to self-expression, to be treated the same as the members of the gender with which the person identifies? (As Tribe notes, for instance, “As the Obergefell majority makes clear, the First Amendment must protect the rights of such individuals. . .  to voice their personal objections . . . but the doctrine of equal dignity prohibits them from acting on those objections . . .  in a way that demeans or subordinates LGBT individuals and their families.”) Or are individuals’ moral or privacy sensibilities in a restroom or locker room different in this context than under free speech jurisprudence—especially in a day and age where concerns for the erosion of privacy are widely lamented?

Due to the billions of dollars of federal funding at stake, Sharp has predicted that this issue may one day get to the Supreme Court. Lower courts, legislatures, and school boards are left in the meantime to sort through these important issues to try to ensure the liberties of both LGBT and non-LGBT individuals equally.

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