Developments in Federal Bathroom Law

Introduction and Disclaimer

Restrooms are only one part of the discussion. I believe the root of many of society’s problems is our obsession with genitalia; that is, in using genitalia to assign “male” and “female” and then assuming that those assignments are relevant and useful ways to socially classify people. This has been something that courts, including the U.S. Supreme Court, have assumed since their inception. The only change since then is to what extent we classify and regulate. We no longer tolerate “but she’s female” as a reason to deny women law licenses or prohibit them from working as bartenders; indeed, it seems ridiculous to do so in 2016. Yet it remains the case that it is typically taken for granted that a gender-inclusive educational facility requires separate living accommodations for men and women.

Ultimately, the morass over who can use which gender-segregated bathroom sidesteps the issue of whether there ought to be gender-segregated restrooms at all, but regardless, that's what we have now, and it's going to take longer to change than than the people who are trapped in it now should have to tolerate.

For the record, I am not in favor of gender-segregated restrooms; I support the idea of the norm being gender non-specific multiple-occupancy restrooms. I also advocate a proportional number of gender non-specific single-user options for religious accommodation, and for those who really can’t bring themselves to pee or poop in a mixed restroom. I find the traditional notion of sex to be a generally useless division, and I think the burden should be on whoever wants to segregate to prove why segregation is important. In Con Law speak, I think sex/gender discrimination/separation should be subject to strict scrutiny.

Those are other discussions, forthcoming, although you can get some insight into my point of view with this blog post.

Updates in restroom law

It’s a very hot time for legislative and legal activity with respect to transgender discrimination. You can read a thorough review of the relevant law, current through about two weeks ago, in the current issue of Colorado Lawyer (authored by yours truly).

Since my article went to press, though, two important things have happened. 

(1) United States Supreme Court weighs in on gender identity progress 

The U.S. Supreme Court voted to stay the Fourth Circuit’sholding in G.G. v. Gloucester CountySchool Board. The Fourth Circuit had ruled that a school was required to allow a transgender boy to use the restrooms consistent with his gender identity. The school board sought an emergency stay of the order, which the Court granted on a 5-3 split, with the sitting justices splitting along ideological lines except for Justice Breyer’s unexpected jump to the right. He explained that until there was a full Court, he would prefer to preserve “the status quo.” The status quo is the gender binary and classification within it solely based on genitals. I shake my fist at Breyer; he just showed that he’s a little too scared of transgender people to let progress continue.

The practical effect of the stay is, first, that the plaintiff will not be able to use the boys’ restroom in his Virginia high school, with the attendant insult to his identity. I’m sure he’s used to it, and I admire his strength in hanging in there as a test case. Rock on, brother.

The practical legal effect of the Supreme Court’s decision places the Fourth Circuit Court of Appeals decision in limbo, with no precedential value.

What that does is slow things down. The Fourth Circuit’s decision would have bound courts in Maryland, Virginia, West Virginia, North Carolina, and South Carolina, meaning that courts in those states would have been required to interpret Title IX of the Education Amendments of 1972 to require that schools must let students use sex-segregated facilities consistent with their gender identity. It also would have made HB2 in North Carolina unconstitutional as applied to educational institutions.

But the application for a stay pending the inevitable appeal and ultimate Supreme Court decision is really unsurprising. All the stay really means is that the legal system will continue to move at its customary snail’s pace. For the moment, nothing has changed.

(2) Thirteen states win challenge to Federal Guidance in a Texas Federal District Court 

Yesterday, the Federal Court for the Northern District of Texas issued a ruling that enjoined the Feds from enforcing their interpretation of Title IX as expressed in the  “Dear Colleague” letter issued by the DOE and DOJ in May, 2016. In layman’s terms, the feds can’t tell the states what to do, and the letter has no practical effect. This is an administrative law case that raises a number of questions with respect to the Administrative Procedure Act as well as civil procedure questions like standing and ripeness. Moot courts across the nation should be drooling.

What this means practically is that the Feds can’t impose any sanctions (such as withholding funds) on states for not following the guidance contained in the Dear Colleague letter. In other words, this is another decision that preserves the status quo rather than allowing progress to continue. 

It may be easier to understand this decision's practical implications (or non-implications, as the case may be), in the context of how it would have affected the Fourth Circuit's decision in the G.G. case had it not been stayed by the Supreme Court.

The Northern District of Texas v. The Fourth Circuit 

In making its decision in G.G. v. Gloucester, the Fourth Circuit relied heavily on the Dear Colleague letter precisely at issue in the Northern District case. It is crucial however, to note in deferring to guidance from the DOE and DOJ, it never said that it felt that it had to defer to said guidance. It would be reasonable for the defendants in G.G. v. Gloucester to ask for a rehearing after this decision. It would also be unsurprising for the Fourth Circuit to reach the same decision as it did before if it were to find the Agencies’ guidance persuasive in interpreting what it interpreted to be an ambiguous law. The capital-L-Law is fairly unformed on this issue (see my forthcoming article), and therefore any argument that the Agencies’ interpretation is prohibited by law would be itself subject to additional litigation.

In other words, none of this is even close to over.

Note to people in Colorado

Colorado's Anti-Discrimination Act contains provisions protecting people against discrimination in employment, housing, and places of public accommodation on the basis of gender identity. In other words, regardless of what happens with the federal cases discussed above, a person who experiences such discrimination in Colorado can seek relief through the Colorado Civil Rights Division. This is discussed more thoroughly in my forthcoming article.

All of the above is the personal opinion of Victoria L. Otero, Esq., informed by her professional knowledge and expertise. This column is not legal advice.