Sunday, October 30, 2016

The "Loving Analogy" in the New SCOTUS Trans Case

by Michael Dorf

Among the law nerds in whose circles I move, there is a developing view that the public will misunderstand the trans school restroom case of Gloucester County School Board v. G.G, in which the Supreme Court just granted cert. In the law-nerdy view, the public will view the case as fundamentally about trans equality, but in fact it's mostly about administrative law. In this post, I'll explore the possibility that the uninformed public are mostly right and the law nerds are mostly wrong. If so, then the administrative deference issue is secondary: the core question is whether anti-trans discrimination is sex discrimination.

I'll start with as brief a recap as possible. G.G. is a transgender boy who was denied access to the boys' restroom in his high school. The school board eventually offered three single-user restrooms, but G.G. was unhappy with that accommodation, regarding it as stigmatizing. G.G. sued under the Equal Protection Clause and Title IX. The equal protection claim has not yet been adjudicated, but the district court initially denied a preliminary injunction on the statutory claim. Then the Fourth Circuit reversed.

The two key provisions are:

Title IX: "No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance."

and

a Department of Education Reg (codified at 34 C.F.R. § 106.33): "A recipient may provide separate toilet, locker room, and shower facilities on the basis of sex, but such facilities provided for students of one sex shall be comparable to such facilities provided for students of the other sex."

The Fourth Circuit held that the reg was ambiguous with respect to classifications of who counts as what sex. It then turned to recent Department of Education guidance documents that say that Title IX forbids recipients from classifying students in a manner that contradicts their gender identity. The court invoked the doctrine of Auer v. Robbins, under which courts give substantial deference to agency interpretations of ambiguous agency regulations. Granting such deference, the Fourth Circuit found that the district court had erred in rejecting the claim of sex discrimination under Title IX and remanded to the district court, which then granted the injunction. Before the school year started, however, the SCOTUS stayed the injunction, with Justice Breyer providing a "courtesy" fifth vote for the stay. (I discussed the courtesy fifth vote here.) Unsurprisingly in light of the earlier stay, the Court granted cert.

The cert petition posed three questions. The first was whether the Supreme Court should overturn Auer, but the Court denied cert on that question, granting only on the second two: (1) Assuming Auer remains good law, does it apply to an unpublished agency letter adopted in the course of the dispute at issue? (2) With or without deference, is the agency construction correct?

Now let's move on to the possibility I want to explore: Maybe the Fourth Circuit opinion, the cert petition, and even the respondent's brief in opposition all make a fundamental mistake: They accept that the Dep't of Education policy regarding gender identity construes the reg. The Fourth Circuit and the respondent say that in doing so, the agency is entitled to deference; the petitioner and various amici say that it is not entitled to deference; but none of the relevant actors appears to realize that the Dep't of Education was not construing the reg--except in a negative sense.

Here's what I mean by a negative sense. The reg does not forbid anything. It is an authorization for sex-segregated restrooms by recipients of Title IX funds. Thus, the Dep't of Education was construing the reg only in the sense of saying that the reg doesn't authorize classifying schoolchildren contrary to their gender identity. That's not nothing, of course. But it doesn't win the case for G.G., because it doesn't establish that classifying students on the basis of biological sex at birth even when that disagrees with gender identity is sex discrimination in violation of Title IX. To get to that further crucial point, a court must either defer to the agency's construction of Title IX or simply agree that, considered de novo, Title IX's prohibition on sex discrimination forbids classifying students born biologically to one sex as that sex even if their gender identity corresponds to the other sex.

Is there a basis for deference to the Dep't of Education's construction of Title IX? If so, it's not Auer, because Title IX is a statute, not the agency's own reg. What about Chevron deference? Notably, even the respondent does not think that the sort of agency guidance at issue here (which was not promulgated as a reg) is entitled to Chevron deference. Absent Auer deference, the respondent argues that the agency's approach is entitled to so-called Skidmore deference (so-named for a 1944 case). But since United States v. Mead, it has been fairly clear that Skidmore deference is practically de novo review. As Justice Souter characterized the test in Mead, "under Skidmore" an agency determination "is eligible to claim respect according to its persuasiveness."

If "respect according to its persuasiveness" sounds like no deference, there's a reason for that. In Mead, Justice Souter (writing for the Court) explained that Skidmore deference takes account of the specialized knowledge and expertise of the agency in addressing a technical subject. Granting that there are contexts (such as the setting of tariffs, as in Mead itself) in which that is something more deferential to the agency than a de novo judicial assessment, Title IX does not seem to be one of those contexts. Whether forbidding trans students from using the restroom corresponding to their gender identities counts as sex discrimination is a moral, philosophical, and/or linguistic question; but it is hardly a technical one.

Accordingly, I think that the Department of Education probably should not receive any real deference with respect to the crucial question presented in the case. I hasten to add that I also think that G.G. should win even without deference. I'll now briefly explain why.

At first blush, the argument for G.G. that there is a prima facie violation of Title IX looks like a slam dunk. After all, Title IX forbids sex discrimination and the school tells him he can't use a particular restroom because of (what it deems to be) his sex. (Biologically born) boys can use the boys' restroom; G.G. can't because the school regards him as a girl. That's sex discrimination, plain and simple. The only way that the school district can win is by relying on the reg authorizing sex-segregating restrooms, but in doing so it must overcome Auer deference. Right?

Well I think so, but I'm not 100% confident that a majority of the Supreme Court will think so. To see the difficulty, think about same-sex marriage. Why didn't the Court simply say that laws forbidding same-sex marriage were a form of presumptively impermissible sex discrimination? During the oral argument in Obergefell v. Hodges, Chief Justice Roberts himself raised the issue with the following question:
I'm not sure it's necessary to get into sexual orientation to resolve the case. I mean, if Sue loves Joe and Tom loves Joe, Sue can marry him and Tom can't. And the difference is based upon their different sex. Why isn't that a straightforward question of sexual discrimination?
The lawyer for the state gave what I regard as a not-very-persuasive answer about how the Court's sex discrimination cases all "involved treating classes of men and women differently" and how sex distinctions drawn on the basis of biology are not presumptively suspect. Evidently that satisfied Chief Justice Roberts, however, because he dissented from the Court's recognition of a right to SSM without even addressing, much less rejecting the sex discrimination argument. Notably, the majority in Obergefell didn't address the sex discrimination argument either, even as it discussed equal protection principles. And prior to Obergefell, even some judges who ultimately concluded that there is a right to SSM rejected the idea that laws banning SSM are sex discrimination.

Put differently, in the SSM context, in order to get the Court to take seriously the obvious existence of sex discrimination, advocates for the right to SSM first had to persuade the Court that there really was sex discrimination going on. In the SSM litigation, the typical move was by analogy to Loving v. Virginia.

Based on the cert petition in the new trans restroom case, it could be said that the school district has waived any objection to the prima facie determination that there is sex discrimination under Title IX itself, relying entirely on the reg. However, the Court has been known to expand beyond the scope of the cert questions, and thus it is possible that in considering the case, one or more justices might question whether there is even a prima facie violation. If so, the Loving analogy would be the obvious response. 

Suppose two high school boys: G.G., a trans boy, and F.F., a cisgender male. Under the school district policy, F.F. but not G.G. is entitled to use the restroom that corresponds with his gender identity. What's the difference between F.F. and G.G.? Why, biological sex at birth. Thus, the policy literally draws distinctions on the basis of sex in violation of Title IX. QED.

The district might argue that the Congress that enacted Title IX did not have trans cases in mind, but so what? As Justice Scalia wrote for the unanimous Court in the 1998 Oncale case, "statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed."

The school district still might argue that it is not distinguishing based on sex. After all, whether a student was born a biological boy or born a biological girl, that student is not entitled to use the restroom for students of the opposite sex. Following the logic of the state's lawyer in response to CJ Roberts during the Obergefell argument, the claim would be that there is no adverse treatment of either boys or girls as a class. This rejoinder is closely analogous to the losing argument in Loving. The Court rejected the argument in Loving, but its failure to consider it in Obergefell leaves its status outside of the race context unclear.

To my mind, the best (but still not very good) argument against the Loving analogy in the SSM context asserts that it is merely a formal analogy: Yes, a man told he can't marry another man is formally suffering discrimination based on sex, because a woman could marry a man, but (this objection to the Loving analogy goes) the state is really discriminating based on sexual orientation, not sex.

So too here, one can imagine the school district and others pushing back against the Loving analogy by saying that there's no real sex discrimination, only formal sex discrimination conjured up through clever lawyering to disguise what is at worst a failure to accommodate a trans student in the way he prefers.

I didn't like that response to the Loving analogy in the gay rights context and I don't like it any better in the trans rights context. The reason is that the analogy isn't just formal; in both contexts it's substantive too. Laws that discriminate on the basis of sexual orientation or on the basis of trans status instantiate the fundamental problem with sex discrimination: sex-role stereotyping. Anti-SSM and other anti-gay laws stereotype based on sex with respect to the object of sexual attraction. Anti-trans laws stereotype based on sex-stereotyped assumptions about gender identity. So it won't do to say that these laws aren't really discriminating on the basis of sex but on the basis of sexual orientation or trans status, because discrimination on the basis of sexual orientation and trans status are both formally and substantively forms of sex discrimination.

If the Court were to accept that the school district's policy is prima facie sex discrimination for the sort of reason I've just outlined, then the district might try to invoke the reg to say that sex-segregated restrooms are nonetheless permitted. It's only at that point, if at all, that Auer deference would kick in to benefit G.G.: De novo interpretation of Title IX yields the conclusion that the district is in violation, and the agency is acting reasonably in construing the reg so as not to authorize barring a trans boy from the boys' restroom. But the Auer deference question only arises once the Court has already determined either de novo or under Skidmore (which in this context is de facto de novo review) that there is a prima facie violation of Title IX.

As I said, I think this should be a winning case for G.G. He should win under Title IX without any deference, and then the school district should not have permission for its policy under the reg because of Auer deference. However, I'm not confident that a majority of the Supreme Court will go along with the first step in this argument because of the uncertain status of the Loving analogy. Much will depend on whether there is a ninth justice and, if so, who that ninth justice is.

_______

Postscript 1: In the foregoing, I have not attempted to answer the question whether, assuming there is sex discrimination here, the school district's interests in modesty, privacy, and security might nonetheless justify the discrimination. I've covered enough for one post.

Postscript 2: Above I use the categories of sex and gender identity as binary, but some people identify as gender non-binary. In using binary language above, I meant only to capture the issues of the current case. I did not mean to exclude other possibilities for gender non-binary students.

13 comments:

Joe said...

There is a lot here, but I'll just comment on one thing.

I think there is a case to use sex discrimination arguments in the same sex marriage context (see, e.g., Andrew Koppleman's writings), but it simply is not how many people see it. Only a few judges cited it, though a few did. It also could have logically by precedent resulted in a broad result -- sex is given heightened review. So far, the Supreme Court managed to avoid that, saying rational basis was not met or that heightened review of some sort was warranted because of animus or by relying on marriage.

As to CJ Roberts, eh -- he didn't seriously imho respect the arguments but dismissively handled the whole thing in his dissent. I really cannot tell how serious he was regarding the sex discrimination point. How they will handle a trans case is unclear. A 4-4 tie without a fifth vote is quite possible.

Mike said...

Very interesting post.

I don’t think the notion of “biological sex” (or “biological sex at birth,” as the post calls it) is helpful here. At a minimum, it requires a better definition than the school has offered.

G.G.'s position, supported by medical professionals, is that sex is largely or mostly determined by gender identity (which has a neurological and thus biological basis), even though gender identity is not known at birth. If sex, including so-called "biological sex,” is determined by something we don't know at birth, then what exactly is “biological sex at birth”? Unclear.

People might contest GG’s definition of sex, but what's the alternative definition? Isn’t the brain an awfully big part of our biology?

For purposes of this case, “biological sex at birth” can't mean sex chromosomes, because most of us don't actually know our chromosomes, and the Virginia school board certainly hasn’t inspected anyone’s chromosomes. Chromosomes are also not inspected at birth; our legal sex is *assigned* to us by a birth attendant or doctor, and it’s almost always based on looking at our naked sex organs for all of two seconds (not based on chromosomes).

Is the school board’s policy based on sex organs? School employees aren’t checking sex organs at the bathroom door. And school employees enforcing sex segregation policies for bathrooms don’t have access to records identifying students’ legally assigned sex.

Many transgender people use bathrooms that correspond to their gender identity without complaint or protest, and that's because our intuitions about who belongs in which bathroom are not actually based on sex organs or chromosomes or so-called “biological sex at birth,” whatever that is; our intuitions are based on gender expression and on biological attributes (like facial hair) that can change with hormone treatment. To say that our cultural practices/laws have traditionally segregated bathrooms by ”biological sex at birth," whatever that is, is a fantasy. The girls at G.G.’s school felt uncomfortable with his being in the girls’ room because they perceived him (accurately) as male based on his gender expression and secondary sex characteristics.

Note also that the sex on birth certificates can be amended in many states. Does “biological sex at birth” for a transgender person depend on whether that person has changed his or her birth certificate? (In some cases, the answer is yes. E.g., under North Carolina’s HB2, a person’s legal “biological sex” changes when one changes the sex on a birth certificate. Two people with identical biology will have a different “biological sex” under that law if one has changed her birth certificate and the other has not.)

Shag from Brookline said...

How might the late Justice Scalia have addressed this matter? One could look to his Heller (5-4) 2nd A opinion that invoked the individual right to bear arms premised on self-defense, sort of a natural right that is not explicitly provided for in the language of the Constitution. G.G. is a human being. Voiding from the body is a natural human process. The police power addresses certain public safety issues with respect thereto. But when nature calls, if accommodations are not readily available to G.G., under Title IX or otherwise, what recourses are available to G.G.? Self-help is sort of like self defense in this regard. Is that preferable to making G.G. jump through hoops? I'm reminded of the Seinfeld episode when Kramer was in search of a restroom, not because Kramer was a trans, but he had to go. Who hasn't been in this situation, particularly as a child? (I recall as an adult once using a ladies restroom in an emergency and no problems resulted.) G.G. has to be accommodated in school, without discrimination by means of a special facility for trans, at least while trans are in a very distinct minority. What if G.G. were to exercise his self-help/self defense natural right in the school principal's office? Might such an act rise to the need for a constitutional determination by the Court for such an alleged police power violation by G.G.?

Hashim said...

Mike: I think the issue you've bracketed in postscript 1 shows why you're wrong in the post itself. Namely, under Title IX and other federal anti-discrimination statutes, I'm not aware of any free-floating defense based on "the school district's interests in modesty, privacy, and security": instead, my understanding is that discrimination on the basis of sex, race, etc., is banned full-stop, except where there's an express statutory defense, like the BFOQ exception for sex-discrimination in employment, or the statutorily-authorized regulatory exceptions in Title IX.

The reason this is a problem for you is that, unlike Title IX, Title VII doesn't have a regulatory exception for sex-segregated bathrooms. So unless you're going to argue that virtually every private employer in the country is and has been violating Title VII for half a century, I think you have to acknowledge that sex-segregated bathrooms aren't discrimination based on sex.

And, contrary to your post, the textual justification for that position doesn't require disagreeing with Loving. Rather, the textual justification is that "discrimination" requires similarly situated individuals, and men and women aren't similarly situated w/r/t bathrooms because of their real biological differences.

Michael C. Dorf said...

Excellent comments. Thanks. I'll take a crack at a short reply to Mike (not me!) in this comment and then I'll reply to Hash in my next comment, and then I'll sign off the comments because of the press of other work.

Okay, so let me just say that I essentially agree with Mike's point that "biological sex at birth" is a loaded term, mostly for the reasons he gives. Much queer theory argues that not only is gender socially constructed but so is biology. I find that argument persuasive. I used the term I used mostly for lack of a better one. Something like "genotypical sex" would be accurate with respect to G.G.--who identified as female when very young and almost certainly has XX chromosomes--but as Mike points out, that's not really the basis for the school board's treatment of G.G. as female.

Perhaps a racial analogy is useful here. For many years, it has been clear that race is not a scientifically coherent category. Nonetheless, we more or less understand the social category's pseudo-biological referent. That's why we can say that race discrimination is wrong even though there's "no such thing" as race. People who discriminate on the basis of what they think race is have committed the wrong of race discrimination. Likewise here, we might say that people who discriminate on the basis of what they think sex is (whether by refusing to acknowledge someone's gender identity or in some other way) have committed sex discrimination.

Michael C. Dorf said...

Hash makes the point that "discriminate" as used in Title IX and other anti-discrimination provisions does not simply carry its literal meaning of "treat differently", but carries a normative meaning of something like "treat differently without adequate justification." I agree with that, but I don't agree with the further claim that this undercuts my analysis.

My post addresses the question of whether there is what I call a "prima facie" violation of Title IX, by which I mean whether the school board is treating males and females differently. By invoking a version of the argument that lost in Loving, the school board can say the answer is no. I think the school board should lose that argument. What my blog post doesn't address is whether there is more than a prima facie case of discrimination, i.e., whether there is discrimination in the normative sense. The answer to that question turns on whether the distinction is justified.

Distinguishing between men and women or boys and girls in allocating restrooms may well be justified on privacy, modesty, and/or security grounds for people whose sex (as defined by the state) matches their gender identity, while it might not be justified where the government classifies people as male or female contrary to their gender identity. In the end, the answer ought to turn on the strength of the offered justifications and the social meaning of the distinctions. The reason that until now few people (but not everyone) have thought that sex-segregated restrooms do not discriminate in the normative sense is that the social meaning of sex-segregated restrooms as applied to cisgender folks is generally thought to be innocuous. That is not so for trans folks, which is why the evaluation of the board policy should turn on the strength of the interests asserted in privacy, modesty, and security.

Okay, back to work.

Hashim said...

Mike, to be clear, "discriminate" in these statutory prohibitions doesn't just mean "treat differently," but you've misstated the further meaning I provided, and failed to defend the alternative further meaning you're trying to provide.

You claim (and erroneously state that I said) that "discriminate carries a normative meaning of something like 'treat differently without adequate justification.'" I actually argued the *exact opposite* -- that there's no "adequate justification" defense to statutory discrimination prohibitions unless provided in the statute itself. For example, if an employer discriminates against women or racial minorities because its clients demand that, that's no defense even if the employer can prove it'll go out of business otherwise; likewise, if an employer discriminates based on a racial stereotype that's 99% accurate as an empirical matter, that's still no defense. Thus, free-floating concerns about "private, modesty, and security" can't provide a defense.

Instead, what I actually claimed, and what the law has long recognized, is that "discriminate" means treating differently *similarly situated* individuals. And since men and women aren't similarly situated with respect to their biology, that's why treating them differently with respect to rooms where that differential biology is employed isn't prohibited "discrimination" -- under *any* of the federal discrimination statutes, with or without a regulatory safe-harbor. And all that's true even when the biological distinction is applied to transgender individuals.

Greg said...

As a forward, my views on this topic are, in a word, conflicted. I will say that I believe that schools should be required to, at a minimum, provide the accommodation offered to G.G. I fear that an adverse ruling in this case will result in even that accommodation being denied to many students who should be receiving it.

Mike pointed out that G.G. disputes that he is a "girl" for purposes of Title IX. From what I can tell, this is a disputed fact, and any decision based on this disputed fact is not ripe for summary judgement.

Ignoring that, let's assume for argument's sake that the parties agree that G.G. is in fact a "girl" for purposes of Title IX determination. Does it then follow that there is a prima facie violation of Title IX? I don't think this follows as directly from Chief Justice Roberts hypothetical as Prof. Dorf implies.

In the gay marriage case, the hypothetical was: "If Sue loves Joe and Tom loves Joe, Sue can marry him and Tom can't."

For Title IX gender discrimination, the equivalent hypothetical is: "If Sue wants to use the girls' locker room and Tom wants to use the girls' locker room, Sue can use it but Tom can't."

Both of these are precise fact-specific questions. Bringing gender identity into it is begging the question. Chief Justice Roberts managed to avoid this by not mentioning sexual orientation whatsoever.

So, the question is, are the Justices ready to rule that not allowing Tom to use the girls' locker room is "prima facie" sex discrimination?

I doubt it.

While I have grown to think gender-based bathroom segregation is sex discrimination, I doubt that society or the Supreme Court is ready for that. To rule that it is discrimination would have wide-ranging effects far beyond Title IX, most notably in Title VII. The court would be ruling that, absent some kind of special exception, gender-segregated bathrooms are sex discrimination.

Michael C. Dorf said...

Okay, I can't resist one last response: "similarly situated" is not a fact; it is a normative judgment. See, e.g., hundreds of articles about equality and especially Peter Westen, The Empty Idea of Equality, 95 Harv L Rev 537 (1982). From Westen's abstract: "The principle of equality--that likes should be treated alike--has been a fixture of Western thought for thousands of years. [Yet f]or the principle to have meaning, it must incorporate some external values that determine which persons and treatments are alike . . . ." One need not agree with Westen's further conclusion that equality is "empty" to agree with me (and countless others) that "similarly situated" requires normative judgment, exactly as I indicated. Whether there is "adequate justification" (my term in my last comment) thus bears on whether people are "similarly situated" (Hash's term). So no, I didn't misstate what Hash said. He misunderstood what he necessarily implied by invoking the idea of "similarly situated" people.

John Thacker said...

Suppose two high school boys: G.G., a trans boy, and F.F., a cisgender male. Under the school district policy, F.F. but not G.G. is entitled to use the restroom that corresponds with his gender identity. What's the difference between F.F. and G.G.? Why, biological sex at birth. Thus, the policy literally draws distinctions on the basis of sex in violation of Title IX

But surely this argument applies even to people who are not trans. Suppose we have H.H, a cisgender male who wishes to use the restroom that he prefers to use, and that happens to be the "girls" restroom, regardless of whether it corresponds with his gender identity. H.H. would be denied the restroom of his choice solely because of "biological sex at birth." Absent a particular statutory or other protection of gender identity in Title IX, why would these be treated differently?

As Greg says, the analogy is indeed much stronger as a pure argument against sex-segregated bathrooms themselves. To restrict the analogy to trans people in the Loving analogy would be to allow interracial marriage only with people who "passed" and saw themselves with a different racial identity (such as Rachel Dolezal) even if that didn't match the racial classification supposedly based on biological traits that was assigned at birth based on some one-drop rule or another. Or, similarly, it would be a version of Obergefell that allowed transmen to marry women, but not people who continued to identify as women to marry women.

John Thacker said...

A ruling that "ok, people are allowed to identify with the racial identity that suits them, since as we all know race is not a coherent scientific subject but a social category and felt and lived experience, but if you don't identify as white (with however that is attested to by psychologists and doctors and approved by the school and state) then you can't marry another person who does" is essentially the analogy to what you're asking for here. It may be the case that, in the Loving analogy, someone who had been marked as "black" at birth but had lived and identified as white would have felt particularly oppressed by Virginia's laws that banned a marriage to a lover (perhaps after noisy relatives or friends objected, and knowing that other people had successfully "passed" or not had their genotype and phenotypes inspected). Their racial identity would have been objected to at the same time as their marriage was denied.

If Loving had ruled that way, then very well people could have claimed that "well, anyone who really wants to marry a white person can identify as such," and there may have been the various same arguments about whether this was a "real" condition or whether people were "faking their racial identity" or whether "biological race" had some kind of meaning, however imperfect. It may even have meant in practice that people simply reassigned as necessary to marry. However, that's not what Loving did, and I think for good reason.

Hashim said...

Fair enough, Mike, that "similarly situated" entails some amount of normative judgment in assessing "similarity." But that's still qualitatively different from invoking "adequate justification" over and above "dissimilarity." There are countless cases where two people are "similarly situated" even as a normative matter -- such that discrimination is statutorily prohibited -- even though that discrimination could be normatively "justified" in some more abstract sense.

To take a simple example: if a law bans "discrimination in employment based on military service," a retired general and a conscientious objector with otherwise-identical backgrounds are "similarly situated," such that discriminating against the general *based on his service* is statutorily prohibited, *regardless of whether* that discrimination has "adequate justification" for reasons separate and apart from whether the two are otherwise "dissimilar" (e.g., the employer can't "justify" the discrimination even if it were proven that he suffers from extreme PTSD and can't be around veterans).

The difference between "similarly situated" and "adequate justification" is critical here. You want to use "adequate justification" precisely because it's an amorphous concept that goes beyond assessing whether individuals are "similarly situated": you acknowledge that cisgender men are not "similarly situated" to cisgender women, and you recognize that's based on their different biology (which gives rise to concerns of privacy, etc.), but you want to elide the fact that those same concerns are equally presented with respect to transgender men and women using the opposite-biological-sex bathroom, by invoking notions like "degree of harm" and "stigmatic message" to argue that sex-segregated bathrooms are "justified" for cisgender individuals but not transgender individuals, wholly apart from any difference in "similarly situated" status.

Shag from Brookline said...

For some reason I wondered about the impact of India's caste system on use of toilets and via Google came up with this link:

https://www.washingtonpost.com/world/asia_pacific/india-is-building-millions-of-toilets-but-toilet-training-could-be-a-bigger-task/2015/06/03/09d1aa9e-095a-11e5-a7ad-b430fc1d3f5c_story.html

Another article discussed how India's toilet program is using efforts to shame people to actually use toilets, there being some reluctance that seems to relate to the caste system.

Here in America, do we have sort of a caste system with efforts to shame G.G. and other trans in the use of toilets? I appreciate the scholarly slicing and dicing but when a trans gotta go a trans gotta go, just like the rest of us.