Tuesday, October 08, 2019

The Way to Stop the Title VII Parade of Horribles is to Stop Parading the Horribles

by Michael C. Dorf

Today the SCOTUS will hear oral argument in two cases apparently presenting the questions whether Title VII's prohibition on sex discrimination thereby forbids discrimination based on sexual orientation and gender identity. As Prof Marty Lederman explained in a blog post last month, the framing of the cases as involving categorical policies excluding LGBT persons from employment is wrong on the facts, but he also argued (and I agree) that if the cases are framed that way the plaintiffs still should win. (Interested readers can find the brief by Marty, me, and three other law professors in support of plaintiff Aimee Stephens in the Harris Funeral Homes case here).

Today I want to address two arguments made against recognizing gender identity discrimination as sex discrimination. Both have the flavor of a parade of horribles and feature in various briefs by the defendants and their amici. The arguments are that if gender identity discrimination is deemed unlawful under Title VII, then it will be unlawful under other statutory prohibitions of sex discrimination and as a matter of equal protection, which, in turn, will be the end of sex-segregated restrooms in public and publicly funded institutions as well as the end of girls and women's high school and college sports.

My response is that the restroom concern is mostly hysteria, but that if it isn't, that's not a reason to reject the plaintiffs' claims here. I have the same response to the sports objection: If it's persuasive, that's a reason to draw the line there, not a reason to reject claims in a totally different context. Now I'll elaborate.

Various "bathroom bills" and like policies that forbid trans folks from using the public restroom that corresponds to their gender identities are rooted in fears that are not supported by evidence of any real risk. On the contrary, various jurisdictions have for years permitted people to use the restroom designated for their gender identity without any indication that such laws lead to sexual assault or other crimes.

However, for the sake of argument, suppose it were true that there were a horde of cisgender men just waiting for the opportunity to pose as trans women and use the women's restroom for nefarious purposes. Suppose further that there were no good way to stop these bad actors from exploiting the legal protection that would be afforded to trans people. And suppose finally that one made the judgment that protecting women from cisgender men posing as transgender women in restrooms was a weightier interest than the interest in avoiding imposing stigmatic and emotional harm on trans folk by barring them from the restroom corresponding to their gender identity. If all of those suppositions were true, then one would have to conclude that the law -- whether via equal protection, Title VII, or some other civil rights statute -- would not entitle trans folks to use the restroom corresponding to their gender identity.

But here's the thing. In the hypothetical world in which trans women using the women's restroom would be a bridge too far, the factors that lead one to that conclusion would hardly suffice to justify other sorts of discrimination against trans folks.

That point should be obvious. After all, the law allows sex-segregated restrooms as a general matter as applied to cis folks; yet no one thinks it follows from the general permissibility of sex-segregated restrooms that sex discrimination in other contexts is generally permissible. If five justices believe that current law should be construed to permit various entities to exclude trans women from women's restrooms, they can make that point as a limitation on the scope of Title VII. Such a view about restrooms is not a reason to reject either the obvious fact that gender identity discrimination is a form of sex discrimination or to conclude that such gender identity discrimination can be legally justified in other contexts.

The same point applies with respect to Title IX and women's sports. In order to preserve opportunities for cisgender female athletes, in some contexts it might become necessary to exclude some transgender female athletes who have not undergone hormone therapy, because of on-average strength and speed advantages of male athletes.

How to balance the competing concerns here could pose difficult questions. Regulatory bodies that oversee athletic competition have not yet fully figured out how to ensure fair competition, maximize opportunities for female athletes, and also ensure that trans athletes be included in ways that are consistent with their gender identity. Thus, the decision to require cisgender female but naturally high-Testosterone athlete Caster Semenya to take drugs to reduce her Testosterone levels in order to compete as a woman is problematic in its definition of women by reference to hormone levels. I want to recognize that the goals of inclusiveness for female athletes and recognition of gender identity for trans women may be in some tension. The Semenya decision is problematic, but no decision will be able to resolve these issues perfectly.

That said, two points bear emphasis. First, the Title IX issue could end up being a non-problem in nearly all settings. It has been 43 years since Renee Richards won the right to compete as a woman in the US Open. In the ensuing years, there has hardly been a flood of trans women in women's sports, much less cisgender men falsely claiming to be trans women in order to gain a competitive advantage. The Title IX women's sports issue may very well be just like the restroom concern: almost purely hypothetical.

Second, and again as with respect to the restroom question, if accommodating trans women in competitive sports should prove to be impossible or should it be perceived as impossible by some justices, the solution should not be to ignore discrimination against trans persons in circumstances in which there is no good justification for the discrimination.

The fact that killing is permitted in self-defense does not mean there's no murder law. The fact that churches can favor members of their own denomination when choosing clergy does not mean that religious discrimination in general is permissible. And the fact that there might be circumstances in which the law should permit distinctions between cisgender and transgender women does not mean that gender identity discrimination should generally be permissible.


Joe said...

I appreciate the brief and discussion.

It is reassuring really that the same people who (including one who commented around here) thought incestuous and polygamous marriage was easier to defend than same sex marriage are involved here as well. [Not really. See Prof. Leah Litman's post at Take Care Blog.]

Real life shows the limits of these parade of horribles, especially when the issue is hiring and firing. But, full fledged equal protection is going to involve special situations that will require some finesse. As is often the case, the basics can be see in every day life, not trying to belittle that these legal debates can have special nuances.

Linda Greenhouse when these cases were first taken had a column that was fairly optimistic, parsing the questions presented to show how the justices carefully narrowed the dispute to some degree. I am somewhat optimistic of at least a partial victory.

Asher Steinberg said...

"If five justices believe that current law should be construed to permit various entities to exclude trans women from women's restrooms, they can make that point as a limitation on the scope of Title VII."

How? The plaintiffs here are making a textual argument, so it seems to me they (and you, in defense of them) have to point to some textual way to draw the line there, rather than saying that once we get to bathrooms we're suddenly allowed to start saying that certain things are a "bridge too far" or not what the statute "should" be interpreted to prohibit or not what Congress had in mind in 1964. I mean, you haven't really said anything here; you can't just say that the Court wouldn't have to hold x if it holds y without any account at all of why y doesn't entail x.

Michael C. Dorf said...

Yes, obviously it's not enough to say A isn't B. A must be relevantly different from B. But Asher is mistaken in his implication that the difference between A and B must be contained in the statute's text (though of course it can't be ruled out by the statute's text). Part II(A) of our brief (linked in the main post above) provides various illustrations from the Court's leading sexual harassment cases in which the Court found prima facie sex discrimination but cautioned that below a certain threshold of harm there was no violation or that some actions were "unreasonable" or "reasonable," all in reliance on general normative principles that commend themselves to sensible people drawing sensible distinctions but not strictly derived from the text. That is EXACTLY what I'm suggesting in this post: If the justices think that trans employees should not have a Title VII right to use restrooms corresponding to their gender identity because of some perception of greater harm or unreasonableness or whatever, but that the clearly sex-based exclusion based on gender identity is unreasonable, THAT difference would supply the relevant distinction. Oh, and just about all the cases we cite are joined or written by justices who endorse textualism.

As to what exactly the distinction should be, I'll leave that to the justices, because I don't think the restroom concern is well-grounded in the first place.

Coyote said...

Good article, Professor Dorf! As I previously said elsewhere, the main quibble that I would have about this from an "old originalist" perspective is that if there was no meta-intent by the draftsmen of this statute to ever give the judiciary the authority to classify gender identity discrimination as sex discrimination, then by doing this, the judiciary would essentially take over the law-making power from the legislature--something that an "old originalist" would probably argue that the judiciary is not actually empowered to do due to the concept of separation of powers. In other words, an "old originalist" is going to argue that legislatures write laws and that the judiciary shouldn't be able to update laws to apply them to circumstances that the legislature would have rejected ever applying them; rather, the solution in such circumstances would be for the legislature to simply pass new laws. It's the same for the US Constitution--according to "old originalists", the courts should not be able to de facto rewrite the US Constitution under the guise of interpretation if the draftsmen of the relevant part of the US Constitution did not actually intend to ever give judges the authority to do this; rather, the solution to a particular injustice would be to pass a new constitutional amendment.

I do agree that your arguments here are going to be persuasive if one rejects "old originalism", though. In other words, discrimination based on either gender identity or sex should be judged on a case by case basis--similar to how, say, the existence of discrimination against naturalized US citizens in regards to the US Presidency and US Vice Presidency shouldn't automatically be viewed as a warrant to allow discrimination against naturalized US citizens in all other contexts.

In regards to the bathroom issue specifically, I do wonder if the logic that could be used to justify allowing trans women to enter women's restrooms could also be extended to cisgender male cross-dressers. For instance, YouTube makeup artist John MacLean. After all, can't a cisgender male cross-dresser likewise be put at risk if he will enter a male restroom--especially considering that violent transphobes are probably unlikely to differentiate between cisgender male cross-dressers and transgender women? (Interestingly enough, I suspect that some cisgender male cross-dressers already use women's restrooms without ever actually being found out.) As for sports, I've heard the idea that even after beginning female (estrogen) HRT, trans women athletes could have certain advantages due to the previous effects of male puberty on their bodies--with the argument being that not all of these advantages actually go away after one begins female HRT. I'm not an expert in regards to this and thus I can't speculate on this argument's validity (at least as of right now), but I am simply putting forward this argument out there due to the fact that I have previously heard some people making this argument. Again, though, *even if* discrimination against trans women is acceptable in regards to restrooms and/or sports, this certainly doesn't and shouldn't mean that *all* discrimination against trans women or transgender people in general is actually acceptable or actually constitutional.