'To Sit or Stand': Transgender Persons, Gendered Restrooms, and the Law

Abstract

The issue of transgender bathroom access appears to be the next major area of the struggle for expanded civil rights for LGBTQ persons. Over the past two years, states have considered and passed legislation defining gender and restricting access for transgender persons, particularly students, from the restroom that corresponds with their gender identity in public facilities, particularly public schools. In response, the federal government, through the authority of the Department of Education and the EEOC, has pushed back against these state restrictions arguing that both Title VII and Title IX provide protections for transgender persons to access the restroom facilities that correspond with their gender identity. With the beginning of the Trump Administration, the landscape surrounding these issues has changed even more. In order to understand the issues raised surrounding restroom facilities, it is important to examine the history and background of the development of gendered restroom facilities in public facilities and workplaces. This Article will first examine the history of sex-separation in restroom facilities in public facilities, exploring how this separation was firmly rooted in the “separate spheres” ideology of the nineteenth century. The central thesis of this ideology was that a woman’s proper place in society was to be in the home, tending the household and rearing children. However, the emergence of technology, industry, and transportation in America in the nineteenth century began to challenge this “separate spheres” ideology as an increasing number of women left the home to enter the workplace to meet the demands of an expanding economy. These developments ultimately led legislators to regulate public architectural spaces in order to preserve a Victorian social view of women. One aspect of this regulation was the creation of sex-separated toilet facilities, washrooms, and dressing rooms.

After examining the historical context for gendered restroom facilities, this Article turns to a discussion of the emerging body of law regarding the protection of access for transgender persons to the restroom facilities that correspond with their gender identity. This Article first focuses on the development of the protections against discrimination “because of sex” that are contained in both Title VII and Title IX, looking at how courts have expanded the notion of “sex” beyond a simple gender binary understanding.

The Article will then examine recent litigation and legislation focused on use of restroom facilities by transgender persons, including developments in North Carolina and Virginia. By way of example, the Article will examine in depth the issues developed through the Grimm case, looking at the case from its inception, its consideration by the Supreme Court and to its current status before the United States Court of Appeals for the Fourth Circuit. Ultimately, this Article argues that the Supreme Court should expand the understanding of prohibited discrimination on account of “sex” under Title VII and Title IX to include transgender persons.

Keywords: sexuality, transgender, gender identity, Title IX, education