Transgender Bathroom Rights

Abstract

After winning the right to same-sex marriage in June of 2015, the LGBT community is once again battling in court for its rights, this time for the right of transgender people to use bathrooms and locker rooms that match their gender identity. In its “Dear Colleague Letter on Transgender Students,” the Federal Government has recently interpreted federal law as requiring that transgender students be permitted to use bathroom and locker rooms that correspond with their gender identity in schools receiving federal funding. In two separate lawsuits, 20 states have challenged the legitimacy of this interpretation.

This Article examines the current court battles over transgender bathroom and locker room rights and discusses possible outcomes of the most contentious legal issues in dispute. These issues include: the procedures used by the Federal Government in issuing its interpretation; the substantial legitimacy of the interpretation; and the Constitutional authority of the Federal Government to issue its interpretation. The Article concludes that courts should uphold the Federal Government’s recent interpretation of federal civil rights law because the Federal Government’s interpretation is a reasonable interpretation, lawfully issued, that mirrors the best practices medical and psychiatric recommendations for the protection and inclusion of a vulnerable group.

Update September 2018: Please see my more recent article on the state of transgender bathroom rights following the Trump Administration's rescission of the "Dear Colleague Letter on Transgender Students" in February 2017. "Transgender Bathroom Rights in the Time of Trump" is available at: https://ssrn.com/abstract=3107102.

Keywords: LGBT rights, transgender rights, transgender bathroom rights, Fourteenth Amendment, Spending Clause, Administrative Law