Gender identity or birth sex? Appeals court weighs transgender rights in public accommodations

Gender identity or birth sex? Appeals court weighs transgender rights in public accommodations

RESTROOMS-400Debate comes as NC legislators seek to flush Charlotte’s LGBT protections

Conservative lawmakers in Raleigh have sounded the alarms in recent weeks over a Charlotte city ordinance extending discrimination protections to transgender individuals, including their rights to use restrooms that correspond with their gender identity — claiming a need to protect children from sexual predators.

They’ve vowed to act quickly to nullify that ordinance through legislation of their own, in special session if necessary, and if recent history holds true, someone will then ask a court to overturn that legislative response.

That’s already happening in federal court in Virginia, where a student has challenged a school board policy excluding transgender individuals from using bathrooms that don’t align with their birth gender.

The facts and circumstances may differ – the student has federal discrimination protections that individuals using bathrooms at Charlotte businesses might not, for example. But the conversation the judges in the Virginia case have been having about transgender discrimination speaks as much about what we know and where we stand as a society when it comes to acceptance of different sexualities as it does about the specifics of any case.

In the words of one of the appeals court judges there during oral argument in late January, “what is the meaning of ‘sex’ in 2016?”

Monsters lurking in the bathroom

In a 7-4 city council vote on February 22, Charlotte expanded its nondiscrimination ordinance to include protections for transgender individuals, recognizing in particular their right to use the bathroom aligned with the gender with which they identify, as opposed to their birth gender.

Several state legislators reacted immediately, saying they’d act quickly to nullify at least the bathroom provision of the local ordinance, professing concerns over the safety of women and children.

“Allowing any gender to enter a public restroom and locker room can endanger the lives of our citizens and their children,” House majority leader Mike Hager of Rutherford County said in a news release.

“Restrooms and locker rooms should remain distinctly private.”

Hager and his colleagues have criticized Attorney General Roy Cooper, who has said that state lawmakers have more pressing issues to deal with, and are threatening to convene a special session ahead of the April 25 opening of the legislature to take on the Charlotte ordinance.

“If he refuses to do his job and protect the safety and privacy of our children, then the Senate stands ready to return to session and resolve this issue quickly,” Senate President Pro Tem Phil Berger said in a statement.

Yesterday Berger pulled together a group of senators who’ll work with Lt. Gov. Dan Forest to overturn the ordinance, according to the News & Observer.

They contend that the ordinance violates the privacy of others and, for women and girls, raises the risk of sexual predators entering the bathroom.

But those supporting the protections say there’s no evidence of that happening anywhere and suggest that lawmakers are simply stoking fear as a mask for prejudice.

That’s a fight Gov. Pat McCrory had already stepped into by the time Charlotte passed the challenged ordinance, signing on to a friend-of-the-court brief this past November in the legal challenge playing out in federal court in Virginia over transgender use of bathrooms and locker rooms in schools there.

McCrory joined a handful of states, including South Carolina, telling the court that the federal government had no business telling local schools how to address bathroom use – a position he had asked Attorney General Cooper to sign on to on behalf of the state.

Cooper declined, but the governor persisted, joining along in his own name.

Let the children lead

Although born a girl, Gavin Grimm has identified as a boy since a young age and is undergoing gender reassignment with the help of his doctors. His classmates and teachers at school in Gloucester County, Virginia, have long accepted him as a boy, and though for a time he was using the restroom in the school nurse’s office, at his request they agreed last year to his use of the boys’ bathrooms.

That use continued without incident for nearly two months until a parent got wind of it and complained to the county school board. Under pressure, the board then adopted a new policy restricting bathroom use to those of the same birth sex but adding new single-stall unisex bathrooms for use by anyone who otherwise didn’t fit those categories and needed privacy.

The school board says that because any student can use the unisex bathrooms it is treating all students equally. In reality, though, students who identify with their birth sex have two choices: use the bathrooms aligning with that birth sex or use the unisex bathrooms.

Transgender students like Gavin have only one choice – the unisex bathrooms.

Gavin sued the school board, contending that the new policy violated Title IX prohibitions against discrimination on the basis of sex and 14th Amendment equal protection provisions.

“Requiring transgender students to use separate restrooms from other students violates Title IX by stigmatizing transgender students, depriving them of physical access to school resources, jeopardizing their health, and impairing their ability to participate equally in the educational benefits and opportunities of school,” his attorneys argued in court filings.

In a sharply worded opinion, a federal trial judge dismissed Grimm’s Title IX claim and refused to stay the school board’s new policy while the court entertained his equal protection claim.

That ruling ascended quickly to the 4th U.S. Circuit Court of Appeals in Richmond, where a panel of three judges heard argument in late January.

Help from friends

A number of groups have weighed in on the merits of the case by filing friend-of-the-court briefs.

On one side are school administrators, doctors, civil rights activists and the federal government, all supporting Gavin Grimm.

The government argues that under Title IX schools cannot exclude transgender students from using restrooms which align with their gender identity.

And school administrators from across the country say they’ve been complying with that Title IX prohibition without incident.

Here’s an excerpt from their brief:

“[We] are superintendents, principals, school board members, general counsel, social workers, and other officials from schools and school districts that have adopted, or are in the process of adopting, formal inclusive policies for their transgender students.

[We write to] shed light on the hypothetical concerns raised here . . . and credited by the district court – that by allowing [Grimm] to use the boys’ restroom would lead to general disruption in the school, violate the privacy and/or “comfort” of other students, and/or lead to the abolition of gender-segregated facilities such as restrooms and locker rooms. These same hypothetical concerns have also been raised in some [of our] schools. In [our] experience, none of those fears and concerns have materialized in the form of actual problems in their schools. Instead, inclusive policies for transgender students have had the effect of not only fully supporting the humanity of transgender students, but also fostering a safer and more welcoming learning environment for all students.

On the other side supporting the county school board and the restriction of bathroom use to gender-at-birth individuals, are six states, including North Carolina, and two conservative religious liberty groups – Eagle Forum and Liberty Counsel.

And at the center, set to decide the issue, are three judges over the age of 65 for whom the notion of transgender accommodation is a relatively recent phenomenon, as reflected by their questions at oral argument in late January.

“What is the meaning of ‘sex’?”

To their credit, the judges in the Virginia case explored the definitions of gender and sex and wondered aloud if and where lines should be drawn – giving voice to the suspicions and misperceptions underlying the fears expressed by many in the public, including lawmakers looking to draw a clear distinction.

To listen to oral argument in the Fourth Circuit case, G.G. v. Gloucester County School Board, click here:

Judge Paul V. Niemeyer asked where in a locker room setting a transgender individual would go, given his or her “anatomical apparatus.”

“I’ve been in plenty of locker rooms,” he said. “There’s lots of open spaces in there.”

Niemeyer also asked where a person who’d had a sex-change operation would go and at what point in the process of transitioning would a person be deemed “changed” for purposes of bathroom use — and who gets to make that decision?

Judge Andre Davis pushed the school board attorney David Corrigan on the argument that sex is defined at birth:

Davis: “So your argument is rooted in this notion that some wise person said biology is destiny. But in fact, it’s neurobiology, isn’t it?”

Corrigan: “Our position is that ‘sex’ equals male and female.”

Davis: “Of course that’s your position. But this is 2016, so what is the meaning of ‘sex’ in 2016?”

Corrigan: “’Sex’ is what the person was born with.”

Davis: “I thought we were long past that, in terms of discrimination law, that ‘sex’ is no more than biology. I thought we were concerned about the stigmatizing effect of stereotypical approaches to gender roles, and if you talk about gender roles it’s not possible to not talk about gender identity.”

Davis then questioned the board’s evidence, echoing concerns voiced earlier by Judges Niemeyer and Henry Floyd that the district court based its decision on the barest of proof and generalized allegations of harm to other students.

“What harm occurred during the seven weeks that GG used the boys restroom,” he asked Corrigan.

Corrigan said parents had complained, but as Grimm’s attorney, Joshua Block from the American Civil Liberties Union noted, those complaints had not been produced.

That prompted Judge Davis to wonder what the board’s motivation was, given that the school itself already had the situation under control before the board intervened.

“Everything we read these days is that we need is strong principals in schools,” Davis said.

“And this principal was doing it; he had the situation under control. And then some kind of top down imposition comes along, and disrupts what the principal was managing in a very humane and orderly way. It’s ironic, isn’t it?”