Thursday, March 02, 2017

An Easy Way to Resolve the SCOTUS Case on Title IX and Restroom Access

by Sam Bagenstos, Michael DorfMarty Lederman, and Leah Litman

Cross-posted on Balkinization

Last week the Trump administration withdrew the 2015 Department of Education guidance letter construing Title IX to require recipients of federal education funds to permit transgender students to use restrooms corresponding to their gender identity. That decision might have far-reaching consequences, but it might not, depending on how the Supreme Court handles Gloucester County School Board v. G.G., which is currently scheduled for oral argument on March 28.

Yesterday, plaintiff/respondent Gavin Grimm urged the Court to proceed full steam ahead. After all, even without the Obama administration guidance, Grimm's lawyers argue that Title IX still forbids his school from excluding him from the high school's "male" restrooms. The defendant/petitioner School Board also urged the Court to decide the case, which is not surprising given that the lower court ruled against it, but the Board asked that oral argument be delayed so that the new administration can weigh in (and perhaps in the hope that a delay would allow a Justice Gorsuch to participate).

Meanwhile, merits briefs have been coming in. The School Board argues that the Congress that enacted Title IX intended “sex” to refer to what the Board’s brief calls “physiological distinctions between males and females.” That is at best vague, even as applied to this very case. Grimm has received testosterone hormone therapy and undergone chest reconstruction surgery; he presents as male in virtually all material respects. The Board, however, treats him as "female" because of his external reproductive organs. The Board also argues that this treatment is consistent with Title IX, which generally permits restroom segregation between males and females.

Meanwhile, echoing the withdrawn guidance letter, Grimm's brief argues that the School Board’s policy discriminates against him on the basis of sex because the term sex, as used in Title IX, includes gender identity. That is a potentially compelling argument, but it is possible that the Court will not want to reach it if the case can be decided on narrower grounds.

It can be. An amicus brief filed today on behalf of the four of us argues that the school board policy excluding Grimm from the common restrooms and publicly stigmatizing him as unfit to use the same restrooms as all other boys discriminates against him based on sex in the most literal way: it excludes him from the male restroom on the basis of his sexual anatomy.

That exclusion, we argue, is undoubtedly segregation based on sex and, as we explain at length in our brief, Title IX presumptively forbids such segregation. To be sure, a longstanding federal regulation permits federally funded educational institutions to sex-segregate restroom facilities, and that rule is a proper reading of Title IX as applied to most students. Nevertheless, the school board’s policy contravenes Title IX (and is thus invalid) when applied to transgender students because of the severe harm it inflicts on them without furthering any important institutional interests.

We urge interested readers to check out our brief for the details of our argument. Readers who do will note that in addition to the four of us, Eric Citron (Counsel of Record) and Kevin Russell are listed as our co-counsel. We are very grateful to them as well as to law students Michael Chu, Jeane Jeong, Meghan Larywon, and Max Schulman for their indispensable contributions to the creation of the brief.


qwoijzacxoi said...

Wow, when I was in school I frequently thought, "Litigation on transgender issues is going to be the next big, hard-to-resolve thing", and here it is!

But I think the issues are new enough that what's really holding up development right now is getting to agreement on the facts about the different harms to everyone. This amicus brief's explanation of harms to the affected transgender students is pretty sparse (maybe other briefs really go into it?), and I think a lot more needs to be said (general statistics, studies?) for anyone looking at this for the first time to really be confident in the levels of potential harm to each of the different parties from each potential outcome.

But maybe someone can just figure out and discuss how new these issues are? If it's as new as it feels, maybe there just hasn't been enough time yet for the states to point to real examples and evidence to support their hypothetical "but bad actors can do this!" theories. But if it's pretty old and transgender students have been getting along fine for a long time without problems, that's evidence of pretty low likelihood of dangers to the people the state are saying they're trying to protect here.

John Howard said...

Gavin Grimm should use the women's restroom because Gavin has a right to be pregnant, not a right to impregnate like males do. Schools need to teach that everyone has a right to procreate as their body's sex, no matter what their gender identity.

kramartini said...

Wow! Female is male! Male is female! Even Orwell didn't think of that one.

Joe said...

The usage of "G.G." when we are told his mother's name in the caption and his first name is so readily available is a bit silly at this point. His name is cited in this brief. I understand the concern for anonymity but the naming of his mother alone lessens the value of that considerably.

Unknown said...

I think it can be solved in way simpler manner than policymakers and lawyers think.

It goes like this:

Let men (with male physiology) go to Men's' restrooms.

Let women (with female physiology) go to Women's restrooms.

All others, such as but not limited to LGBTQ...RSTUV.... alphabet soup (no insult and/or pun intended) go to Unisex restrooms with a legal mandate that forbids the Unisex restrooms to refuse any human being in need of a restroom. We have a lot of Unisex restrooms already and law and mandate more specific requirements.

Have Steve Bannon and the ilk stand at the Men's and Women's restrooms to verify if the users meet physiological male and female requirements matching with the relevant restroom. This way all 'phobists' can work at the entrances of Men's and Women's Restrooms entrances and the Unisex Restrooms will be left intentionally unattended as everyone would be welcome there.........perfect solution to various problems!

Trumpists will be gainfully employed and rightfully credit Trump for creating so many jobs making real difference in our society.

Anti-Trumpists will be happy (and stop peeing in their pants - pun intended!) that all the Trumpists are off the street and not having any time, due to full time employment, to bother anyone anymore.

I do not see any party who will lose in this solution!

Except, maybe when someone genius decides to verify if each user of at each restroom is present in the US legally!

If this happens then all bets are off but we can surely come up with a solution whereby Unisex Restrooms get declared as safe havens (similar to churches) for the 'illegals' as Trumpists call them.

Now is that getting religion out of the government and into the restroom or Unisex Restrooms being deemed as churches!

Only Supreme Court can decide that!

Unknown said...

If a girl who thinks she is a boy can use a boy's restroom, so can a girl who thinks she is a girl. Anything else is discrimination on the basis of sex. Though they are not being honest in their intentions, what Dorf and Balkin are asking for is Scotus to declare sex-separate facilities of all kinds--showers, locker rooms, bathrooms unconstitutional--which they will have to do for G.G to win.

Marty Lederman said...

Hey, Denmark: You might want to read our brief. (BTW, "Balkin" is not on it.) Not only don't we "ask" SCOTUS to declare sex-separate facilities of all kinds "unconstitutional"; and not only don't we ask the SCOTUS even to declare them a violation of Title IX;--we actually argue that they generally *are* lawful (even though they violate T9 when applied to transgender students).

Shag from Brookline said...

Is Denmark aware of the Renee Richards connection - plumbing change - there?

Sanjiy's proposal creates Trump jobs and might assist Trump's immigration policy. As to Sanjiy's caveat on churches that might be left to SCOTUS to decide, might we expect a trickle down decision?

Diane Klein said...

Short comment to Sanjiv (blog post from me, coming soon): "just" add unisex bathrooms? I take it you know absolutely nothing about the state (and local) building codes, and their mandates about single-sex bathrooms. Neither did I - until I made a proposal more or less like yours (but with less snark) at a university. Changing bathrooms from single-sex to gender-neutral is almost always impossible unless there are "extra" bathrooms - state law mandates how many of each are needed in every type of establishment, etc. In addition, adding bathrooms triggers a variety of OTHER compliance issues (ADA anyone? How about earthquake issues?). So - if you are multimillionaire and can put your money where your mouth is, terrific. Otherwise, I advise a little more research before you tell us all what we can "just" do.