transgender Girl-OKed-To-Use-Boy’s-Locker-Room Ruling Stayed by Appellate Court
WASHINGTON, D.C. (June 8, 2016): The federal appeals court which ruled that an transgender anatomical girl must be permitted to use the boy’s restroom and locker room has agreed to stay its ruling, based upon a petition filed by the school board. There are many complex issues, says public interest law professor John Banzhaf, who has successfully litigated many sex discrimination and reasonable accommodation actions.
1. When Congress passed a law banning discrimination based upon sex or gender, did it intend to apply to sex or gender in the traditional biological sense of having a male or female sex organ, or did it also mean to include mental gender identity? On this question there appears to have been no definitive ruling, and courts have come down on both sides of the issue.
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2. If “sex” also includes mental gender identity, then it would constitute illegal “discrimination” for employers to refuse to hire transgender people who dressed in a manner inconsistent with their sex.
3. But is it necessarily “discrimination” if their request to use a restroom different from that which corresponds to their anatomical gender is denied, or is it more a question of what is a “reasonable accommodation” to their concerns – a determination which is usually based upon a balancing of different competing interests such as concerns by female restroom users over sexual privacy and fear of assault?
4. If the issue is one or providing a “reasonable accommodation,” is the only reasonable means of accommodating the restroom needs of transsexuals to allow them to go into any restroom normally reserved for people with different genitals, based upon their own unsubstantiated claims? In other words, wouldn’t providing a reasonable number of single-user all-gender restrooms suffice? Alternatively, would it still be a “reasonable accommodation” if people claiming the need to use different restrooms were permitting to do so, but were required to have with them some kinds of certificate indicating that they are in fact transsexual, as we now do with people claiming a “reasonable accommodation” for various handicaps?
5. If federal law requires this type of accommodation for people who dress and act in ways which appear to be contrary to the normal expectation for their gender because they are transsexuals, why shouldn’t the same accommodation have to be made for people who are transvestites who have a similar strong need to dress and appear as the opposite gender but do not have gender dysphoria?
6. Although Congress may override or preempt state laws when it chooses to do so, courts generally require strong evidence of Congress’ intent to do so before they will override a statute of a sovereign state, especially in a legal area traditionally left to the states. Here the only such evidence is a letter from an agency providing its recently-changed interpretation of a statute. Is this sufficient for a court to override a state law, or must Congress take further action to clarify its own intent before the courts override a state law?
Balancing concerns about discrimination with competing interests about sexual privacy and physical safety isn’t easy, and perhaps different approaches may be equally legal, suggests Banzhaf.
JOHN F. BANZHAF III, B.S.E.E., J.D., Sc.D.
Professor of Public Interest Law
George Washington University Law School,
FAMRI Dr. William Cahan Distinguished Professor