On April 20, 2017, the American Constitution Society at AUWCL hosted a discussion about transgender students’ rights. Eric Harrington, from the Office of the General Counsel at the National Education Association, led the discussion on transgender students’ rights, focusing on access to school bathrooms and the Supreme Court’s refusal to review a lower court’s judgment in the Gloucester County School Board v. G.G. case.
In Gloucester County School Board v. G.G., the petitioner, Gavin Grimm, a seventeen-year-old transgender high school student, sued his county’s school board for the right to use the boys’ bathroom at school. Mr. Harrington first discussed the issues that transgender students face when a student is forced to use a bathroom that does not match the student’s gender identity or when the school forces a transgender student to use single stall bathrooms. He stated that students sometimes avoid having to use the bathroom by refusing to eat or drink anything while at school, which can cause serious health problems and can impact the student’s classroom performance. Requiring transgender students to use the single stall bathrooms can also cause anxiety and bathroom avoidance; many students switch to a new school after transitioning to have a fresh start, so mandating the use of single stall bathrooms can “out” these students to their peers when their peers know that only transgender students use those facilities.
Mr. Harrington then discussed the stereotypes behind the opposition to allow a transgender student to use the bathroom that matches the student’s gender identity. The opposition argues that sexual predators will be able to assault women in the bathroom if transgender individuals have access to the bathroom that matches their gender identity. This fear is based on a stereotype that women are particularly vulnerable and in need of special protection, and that transgender individuals are sexual deviants that are more likely to commit sexual crimes. Mr. Harrington compared this fear to the opposition against allowing same-sex couples to adopt, which was based on the stereotype that homosexual individuals were sexual deviants and more likely to commit acts of child pedophilia. Mr. Harrington insisted that “this justification [for opposing transgender student rights] is itself a form of discrimination.”
The courts have questioned whether sex discrimination includes discrimination against individuals who are transgender. Mr. Harrington explained that the U.S. Equal Employment Opportunity Commission states that employment discrimination against transgender individuals can be prosecuted as sex discrimination because the employer is taking gender into consideration when making an employment decision. Mr. Harrington stated that in one case, an employer discriminated against a female employee because she acted “rough and masculine,” and the employer explicitly wanted her to act more “ladylike” before he would agree to promote her. Mr. Harrington argued that this discrimination is similar to discrimination against transgender individuals, because employers are discriminating against individuals for not conforming to the gender norms associated their sex assigned at birth.
If courts hold that sex discrimination includes discriminating against transgender individuals, then transgender individuals will have access to the protections provided by the nation’s civil rights acts. Title 7 of the Civil Rights Act of 1964 prohibits sex discrimination in employment, housing, and other public accommodations. Similarly, Title 9 of the Education Amendments of 1972 prohibits sex discrimination in any federally funded schools. The Supreme Court has also held that the Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution prohibits sex discrimination, so courts must subject laws that discriminate based on sex to intermediate-level scrutiny. Since the Supreme Court decided not to review Gavin Grimm’s case, it may be a while until the United States has a definite, uniform answer on whether sex discrimination includes discrimination against transgender individuals. If the Supreme Court rejects that interpretation, Congress should respond by passing a resolution defining sex under the various civil rights acts to include transgender discrimination.