Transcending Sex: Protecting Transgender Access Through Federal Intervention.

• Date: 22 March 2021
• Author: Foster, Jessen N.

"Right now, we're experiencing a Dickensian time, where it's the best of times and it's the worst of times at once ... We're seeing a marked increase in the public awareness about transgender people and really incredible progress for trans rights, especially from a legal perspective. At the same time, we still represent and are part of a community that experiences incredibly high rates of unemployment, poverty and violence." (1)

1. INTRODUCTION

   On November 6, 2018, Massachusetts became the first state to pass a statewide referendum protecting transgender rights. (2) The ballot initiative, popularly known as Question 3, confirmed a 2016 legislative amendment to the Massachusetts General Laws that prohibits discrimination based on gender identity in places of public accommodation. (3) While this law presents advancements for the protections of the Lesbian, Gay, Bisexual, Transgender, and Queer (LGBTQ+) community in Massachusetts, these protections are not reflected on a national scale. (4)

   On March 23, 2016, the North Carolina legislature passed the Public Facilities Privacy & Security Act, which prohibited transgender people from using restrooms associated with their preferred gender in places of public accommodation, capturing national attention. (5) The decision immediately prompted national backlash, and people on both sides of the issue were quick to issue statements regarding the law. (6) North Carolina ultimately repealed the provision that limited the use of facilities based on biological sex, but retained a provision that preserved anti-transgender regulations by "prohibiting] state agencies and local governments from regulating, on their own, access to multiple occupancy bathrooms and facilities." (7)

   Despite the national attention, politicians and legislators in many states have failed to enact progressive alternatives to bathroom bills. (8) By 2017, the majority of states had either passed or proposed some form of a bathroom bill or other limitation on transgender rights in public places. (9) For example, in 2015 the Kentucky Senate passed a bill prohibiting transgender students from using school bathrooms that did not correspond to their biological sex. (10) In contrast, California passed legislation designating all single-occupancy restrooms gender neutral. (11)

   Although passing state-level legislation protecting transgender people is a positive step, it does not offer the transgender community necessary protections on a national level. (12) This Note will examine the potential for and likelihood of a federal bar against bathroom bills that purposefully discriminate against transgender people in places of public accommodation. (13) Section II.A will examine the history of sex as a protected class and compare how the definitions of "sex" and "gender" have evolved over time. (14) Section II.B will discuss how Title VII and Title IX of the Education Act of 1972 (Title IX) address sex discrimination and how challenges under these statutes create beneficial precedents for transgender litigants based on a body of jurisprudence defining the nuances of sex discrimination. (15) Parts III and IV will discuss the possibility of creating federal discrimination protections for transgender people in public accommodations, specifically focusing on the obstacles to creating these protections on a national scale. (16)

2. HISTORY

   1. Protected Class Status and the Definition of Sex in Society and Antidiscrimination Laws

      While issues of sex and gender identity have recently drawn national attention, the debate is not new; equal rights jurisprudence in the United States is constantly evolving. (17) Traditionally, the United States recognizes race, color, religion, national origin, sex, age, and genetic information as "suspect" or protected classes for purposes of antidiscrimination laws. (18) By recognizing these classifications as suspect, the government identifies them as common bases of unlawful discrimination under the Equal Protection Clause, meaning that discrimination claims based on these classes must receive heightened scrutiny. (19) More specifically, sex discrimination is subject to intermediate scrutiny. (20) In order to survive intermediate scrutiny analysis, the law must further an important governmental interest through means that are substantially related to that interest. (21) Politicians in Massachusetts have used public policy initiatives, such as Senate Bill 2407, to expand the definition of sex to include gender identity and sexual orientation as protected classes. (22) Specifically, these initiatives in Massachusetts seek to include gender identity and sexual orientation as classes protected from discrimination in places of public accommodation and resort. (23) Including gender identity and sexual orientation within the definition of sex would subject anti-transgender legislation--like discriminatory bathroom bills--to intermediate scrutiny. (24)

      The push to include gender identity under the umbrella term "sex" is rooted in discourse about the differences between biological sex, determined by the sex assigned at one's birth, and gender, a self-determined identity not dependent on traditional sex markers. (25) Historically, the term "sex" encompassed both biological and performative characteristics. (26) Beginning in the mid-1950s, American society's conception of "sex" shifted to a more nuanced understanding, which included separating the biological assignment of sex from the social performance of gender. (27) In turn, society's new understanding of sex and gender roles caused courts to reconsider the breadth of sex discrimination protections. (28)

      A modern understanding of these terms completely divorces sex from gender identity, which has important legal ramifications when considering potential discrimination protections. (29) States are split on the definition of sex for the purpose of employment and public accommodation: Some argue that sex refers to only biological qualities, while others assert that it includes gender identity. (30) Both interpretations have a direct impact on protections for the transgender community; including gender identity within the definition of sex means that discrimination on the basis of sex already extends to protect the transgender community. (31)

      Precedentially, sex discrimination prohibitions also prohibit discrimination based on sex-based stereotypes. (32) In Price Waterhouse v. Hopkins, an employer passed over a female employee for a promotion because she did not act like a "traditional" female, despite being decisive, broadminded, and highly competent. (33) Because Hopkins was often demanding of her team members and pushed them to meet deadlines, the company viewed her as harsh, brusque, and aggressive. (34) The Court used a broad definition of sex to examine Hopkins's Title VII claim, ruling that an employer cannot discriminate against an employee for not acting "masculine" or "feminine" enough. (35) Hopkins did not fit into traditionally female stereotypes, which made her an unappealing candidate to the partners evaluating her. (36) While some commentators consider this ruling a victory for transgender rights, others argue that applying this reasoning to transgender discrimination requires too much of a logical leap. (37)

   2. Title VII of the Civil Rights Act and Title IX of the Education Act

      Because Fourteenth Amendment protections only apply to government action, many litigants seek to create change by litigating against private action and using protections established in legislative acts. (38) The original draft of the Civil Rights Act did not include sex as a protected trait; Congress only included it as a last-minute addition. (39) Because it was nearly excluded, some commentators believe that Congress included sex as a suspect class in an effort to kill the Act in its entirety. (40) Regardless, the final product included protections against sex discrimination. (41)

      The Supreme Court and lower courts have repeatedly used the prohibition against sex discrimination to expand protections for people implicitly included in Title VII's protections. (42) For example, in Oncale v. Sundowner Offshore Services, Inc., (43) the Court ruled that under Title VII, sex discrimination can include discrimination by one person against another of the same sex. (44) The Court reasoned that the key issue under Title VII jurisprudence is whether an employer treats a member of one sex in a way that disadvantages them compared to the other sex. (45) According to the Court, Title VII is not limited to the prohibitions that the legislators originally intended; rather, "it is ultimately the provisions of our laws ... by which we are governed," not the plain words of the Framers. (46) Although this principle is not explicitly outlined in Title VII, the Court's ruling in Oncale and Price Waterhouse caused lower courts to extend Title VII to include protection from discrimination based on sexual orientation. (47) Despite this victory, circuit splits prevented uniform national recognition of these protections until the recent Supreme Court decision in Bostock v. Clayton County. (48)

      Title IX does not explicitly extend its protections to include gender identity, but lower courts continue to interpret the prohibition of sex discrimination to include these protections. (49) In G.G. ex rel. Grimm v. Gloucester County School Board, (50) the Fourth Circuit held that the plain meaning of a Department of Education letter entitled students to use the restroom according to their gender identity, even when that identity does not match their biological sex at birth. (51) The court concluded that the Department of Education's interpretation was "not plainly erroneous or inconsistent with the text of the regulation" when considering existing federal guidelines regarding sex and gender, thus extending Title IX sex discrimination protections to transgender status and gender identity...