October 13, 2021

JUSTICE GORSUCH AND THE TRANSGENDER BATHROOM ISSUE: The transgender bathroom issue has made it into the (conservative) news again—this time in a case involving an alleged sexual assault in at a Loudoun County school.

I don’t understand why so many people assume Bostock v. Clayton County (2020) requires schools to allow transgender girls (anatomical boys who “identify as female”) to use the girls’ toilets, locker rooms, and showers. Whether you’re a fan of Justice Gorsuch’s reasoning or not, Bostock doesn’t go that far. Indeed, the opinion denies that it is intended to apply in that context.

I would go further: Bostock’s logic actually strengthens the case for school discretion in dealing with the transgender bathroom, locker room, and shower situations.  Its logic suggests that individual school districts should have the option of dealing with the issue as they see fit.

The Bostock opinion is hyper-textual.  Its logic goes something like this:

  • The plaintiff—a man who revealed that he was going to wear skirts and make-up and use mannerisms that are generally thought of as feminine—was fired from his job at the defendant’s funeral home.
  • A woman who wears skirts and make-up and who uses mannerisms that are generally thought of as feminine would not have been fired from that job.
  • That’s sex discrimination! A man and a woman behaving in the same way were treated differently.
  • Because Title VII bans sex discrimination (and no exception to that ban applies here), this is a violation of Title VII.

Note that Justice Gorsuch did not subscribe to the notion that transgender women are women or that transgender men are men. Indeed, if he had done so, it would have ruined the plaintiff’s case. Title VII does not outlaw discrimination between different kinds of women or between different kinds of men. To win a case, the plaintiff needs to be able to show that a male is being treated differently from a female. In Gorsuch’s view, that’s the key to liability.

Note also that Gorsuch’s logic would presumably also apply to a male who isn’t transgender, but who just wants to wear a skirt and makeup (or to the more common situation of a woman who isn’t transgender and who wants to wear pants and not wear makeup). It’s all about treating males and females differently.

Title IX applies to federally funded schools and covers not just employees but also students. Like Title VII, it bans sex discrimination. It also authorizes the President to promulgate regulations that allow for separate living facilities. President Gerald Ford did so. The regulation explicitly authorizes the separation of toilets, locker rooms, and showers by sex.

So let’s try the Bostock hyper-textual logic in this context:

  • Girls—regardless of how they dress or their mannerisms—are allowed to use the girls’ bathroom, locker room, and shower.
  • Boys—again regardless of how they dress or their mannerisms—are not allowed to use the girls’ bathroom, locker room, and shower.
  • That’s sex discrimination! A boy and a girl are being treated differently. Girls can use the girls’ facilities; boys can’t (and vice versa).
  • But this kind of sex discrimination is explicitly authorized by a regulation (which itself was authorized by Title IX). Title IX is therefore not violated.

Note again that arguing that transgender women are women (or that transgender men are men) doesn’t help establish transgender rights to use the toilet, locker room, or shower that matches their gender (rather than their sex). Title IX does not (and federal law generally does not) require schools to treat all women the same or all men the same (so long as they don’t discriminate on the basis of race, color, religion, national origin etc.).

Note again also that in the absence of an exception for separation by sex for toilets, locker rooms, and showers, the logic of Bostock would be that all boys can use the girls’ facilities (and all girls can use the boys’ facilities). That’s probably not the result transgender students are hoping for.

Maybe I’m missing something, but I suspect Justice Gorsuch would agree with this analysis. It leaves the matter to the discretion of local schools. Some would likely assign transgender students to the facilities they identify with, some would assign them based on (anatomical) sex, and some would assign them to special private facilities. But that’s the way it ought to be. The Ford Era regulation doesn’t require school to separate by sex; it simply authorizes it. As far as the law is concerned, schools can separate by astrological sign if that’s what they want (though I doubt we’ll get any takers on that).

I did an amicus curiae brief on this when Gloucester County School Board v. G.G. was before the Supreme Court. That was before Bostock (and also before Kisor v. Wilkie (2019)), so the issues were a little different back then. But it’s still worth reading if you’re interested in the subject.

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