Breaking the Binary: Desegregation of Bathrooms
| Publication year | 2020 |
Breaking the Binary: Desegregation of Bathrooms
Timothy J. Graves
Georgia State University College of Law, kgraves11@student.gsu.edu
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Sex discrimination is prohibited in the United States by several laws and constitutional guarantees.1 In recent years, the public bathroom has become a battleground for equal rights under these laws, both in the courts and the local legislature.2 Some states have attempted to legislate access to sex-segregated bathrooms purportedly based on biology, defining sex in a myriad of ways, which exclude gender-diverse individuals.3 Meanwhile, the Equal Employment Opportunity Commission (EEOC) has held that denying access to a bathroom corresponding with gender identity constitutes sex discrimination within the meaning of Title VII of the Civil Rights Act of 1964.4 While the EEOC's approach to bathroom access is a
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step towards equal treatment, it fails to adequately acknowledge that the very segregation of bathrooms by sex is problematic—everyone is a mixture of multiple sex characteristics and, while anatomy may be an accurate proxy for non-intersex people who identify with the gender they were assigned at birth, there are many for whom sex-segregated bathrooms will never match their gender identity.5 For many, "male" and "female" do not accurately describe their gender identity.6 Gender identity is a person's internal sense of their own gender of being male, female, another gender, or no gender.7 Among others, non-binary, intersex, and transgender individuals may fall somewhere between the binary options, or even outside of the limitations of the spectrum altogether.8 Despite the recent progressive movement in expanding gender markers on identity documents,9 the law continues to resist acknowledging an expansive perception of gender beyond the rigid, binary system, especially when it comes to bathroom access.10
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This note discusses how the binary view of gender in relation to public bathroom segregation is insufficient to meet the diverse needs of the public and proposes the desegregation of bathrooms as the solution to promote gender equality and reduce gender-based social imbalances. This note will focus on the bathroom rights of individuals who identify outside of the binary options of male and female, viewed through the lens of how transgender people identifying within the binary have been treated by the courts. For the purposes of this note, the term non-binary will be used to refer to these individuals.11 Part I provides a brief overview of recent bathroom legislation in the United States, the statutory and constitutional framework that has been applied to sex discrimination claims, and the courts' treatment of gender-based discrimination claims under each law. Part II analyzes gender-based discrimination claims in relation to public bathroom access under this framework in light of how courts have treated gender litigation and addresses widespread myths about privacy and safety concerns. Part III proposes the complete desegregation of bathrooms based on gender, considers which legal claim is the best avenue of implementing desegregation, delineates the benefits of such implementation, and addresses potential concerns raised by this proposal.
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I. Background
Bathrooms were not always envisioned as particular to sex,12 but today the sex-segregated public restroom is so prevalent that Judge Niemeyer of the Fourth Circuit improperly characterized it as "commonplace and universally accepted" that public facilities be segregated by sex "[a]cross societies and throughout history."13 This perception has contributed to the emergence of the "bathroom narrative," which typecasts any proposed LGBTQIA+14 nondiscrimination bill as opening the bathroom door for sexual predators to victimize young girls and women under the guise of claiming to be transgender.15 Many states have reacted by considering "biology-based" bathroom legislation, closing the door to many whose gender identities do not align with how they are perceived by others.16 Such proposed statutes have been struck
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down—often in committee—before becoming law, with the exception of North Carolina's House Bill 2 (HB2).17 HB2 required that government agencies within the state segregate all multiple-occupancy public restrooms by "biological sex," which the statute defined as male or female as listed on a person's birth certificate.18 In response to overwhelming negative backlash from the federal government and private companies, newly-elected Governor Roy Cooper, signed a bill that partially repealed HB2 in March 2017.19 The net result is that bathroom usage in the United States lies largely in the hands of the courts, which considers the rights of individuals related to federal sex discrimination claims on the basis of Title VII of the Civil Rights Act of 1964, Title IX of the Educational Amendments Act of 1972, and the Equal Protection Clause of the Fourteenth Amendment.20
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A. Title VII
Title VII of the Civil Rights Act of 1964 protects individuals from workplace discrimination on the basis of race, color, religion, sex, or national origin.21 The EEOC is the government agency responsible for interpreting and enforcing Title VII.22 Plaintiffs must establish that they (1) are a member of a protected class, (2) suffered adverse employment action, (3) were qualified for the position, and (4) were treated differently from those outside of the protected class to maintain a claim under Title VII.23 In a landmark case for Title VII, Price Waterhouse v. Hopkins, the Supreme Court ruled that discrimination based on nonconformity to gender stereotypes constitutes sex discrimination.24 The Supreme Court has never considered the question of what constitutes sex, a factor that has contributed to differing opinions from the lower courts as to whether transgender individuals constitute a protected class per se.25 Price Waterhouse opened up a new window for protection of transgender people under Title VII by recognizing that treating people differently because of sex stereotypes violates the statute, and courts have
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repeatedly applied this analysis to protect transgender people in subsequent cases.26 On October 8, 2019, the Supreme Court heard oral arguments for three cases that hold the potential to drastically change how Title VII is applied to cases involving sexual orientation and gender identity.27
In addition to the differences in interpreting how Title VII applies to members of the LGBTQIA+ community, a rift has divided the executive branch between the EEOC in support of protection and the Department of Justice (DOJ) in opposition.28 The DOJ under the Trump Administration argues the plain language meaning of "sex" does not include gender identity and policies relegating people to restroom use based on "biological" sex are applied to all employees equally and thus are non-discriminatory.29 The DOJ has concluded that on balance these policies protect the majority of employees from the discomfort some claim to feel sharing common spaces with transgender people.30
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The EEOC, on the other hand, has taken the position that differential treatment based on gender identity is sex discrimination under Price Waterhouse's broader interpretation and that a plain-language reading applies even beyond anatomy.31 The EEOC further observed that transgender employees are burdened by being unable to enjoy facilities consistent with their identities, as all cisgender employees are able to, and that the transgender community is exposed to higher levels of violence when using public bathrooms.32 By the same token, non-binary people are unable to enjoy facilities consistent with their identities while restrooms remain binarily sex-segregated.33
B. Title IX
Title IX of the Educational Amendments Act of 1972 is modeled after Title VII and protects students against sex discrimination in educational settings.34 Plaintiffs must establish that (1) they were excluded from participating in an educational program due to sex, (2) the educational program was receiving federal funding, and (3) the discrimination caused them harm to maintain a claim under Title IX.35 Consistent with its approach to Title VII, the DOJ under the Trump Administration concluded that Title IX does not protect transgender students in regards to restroom access, and much like its approach to Title VII, this interpretation is out of line with the majority of federal district and circuit court opinions.36
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In 2016, the Fourth Circuit addressed gender identity under Title IX in the landmark case, Grimm v. Gloucester County School Board, in which a transgender boy was denied access to male restrooms at his high school and brought a claim against the school board seeking a preliminary injunction.37 The district court declined to recognize Grimm as male and dismissed his claim, but the Fourth Circuit Court of Appeals reversed and remanded—primarily because of a now-rescinded guidance letter from the DOJ under the Obama Administration.38 The Supreme Court granted certiorari, but when the guidance letter was revoked, the Court remanded the case back to the district court for reconsideration in light of this turn of events.39 On August 9, 2019, the district court ruled in favor of Grimm, awarding him one dollar in damages, court costs, and an injunction requiring the school to update his records to indicate he is male.40
C. Equal Protection Clause
The Equal Protection Clause of the Fourteenth Amendment to the Constitution states that "[n]o State shall . . . deny to any person within its jurisdiction the equal protection of the laws."41 In United States v. Virginia, the Supreme Court established that to defend
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gender-based discriminatory conduct a party must demonstrate an "exceedingly persuasive" justification showing that...
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