Transgender People and Bathroom Access Laws
"Bathroom bills" restrict access to public bathrooms, changing rooms, and other facilities based on gender. They often force people who are transgender or non-binary to use the bathroom that coincides with the sex they were assigned at birth rather than their gender identity.
Access to bathrooms for transgender people has been a contentious point of debate in the United States for the last decade. This article provides an overview of:
- What bathroom bills are
- What they look like for transgender people in the workplace and in schools
- Important cases involving bathroom bills
What are Bathroom Bills?
"Bathroom bills" are laws that deny people access to public bathrooms based on their gender identity or gender expression. Instead, they must use bathrooms aligning with the gender associated with the sex assigned to them at birth.
Health and Safety Risks
Restricting bathroom access poses both health and safety risks for people who are transgender. For example, they might avoid using public bathrooms. This can result in serious adverse medical effects, such as urinary tract infections and bowel and bladder problems.
Forcing transgender individuals to use certain bathrooms also "outs" them to the public against their will. Not only does this violate their privacy, but it could also put their physical safety at risk. In one survey, 60% of transgender Americans reported experiencing harassment and assault when using public bathrooms.
State Bathroom Bills
Under laws proposed in Florida and Indiana, a transgender person could face criminal charges for using their choice of bathroom. Tennessee updated its indecent exposure laws in 2019 (HB 1151) to include the following:
- Multi-occupancy bathrooms
- Locker rooms
- Dressing rooms
North Carolina's legislature passed a bathroom law known as HB2 in 2016. It restricted the use of public bathrooms to align only with a person's sex on their birth certificate. But, that section of the law was later repealed in 2017 after receiving strong criticism.
Notable Bathroom Access Cases and Legislation
In 2001, the Minnesota Supreme Court ruled in Goins v. West Group that an employer requiring bathroom use based on "biological gender" was not discriminatory. However, nearly twenty years later, the Court of Appeals of Minnesota held that Goins does not apply in education settings. In N.H. v. Anoka-Hennepin School District No. 11, the court concluded that restricting locker room access based on gender identity violated the Minnesota Human Rights Act.
In 2015, voters in Houston, Texas, repealed the Houston Equal Rights Ordinance. Opponents of the ordinance claimed it would allow cisgender men to enter women's bathrooms under the guise of identifying as a woman. They claimed to be shielding women from male sexual predators. The slogan of opponents became “No Men in Women's Bathrooms." Many people panicked, and the anti-discrimination ordinance was repealed.
In 2016, California became the first state to require all single-occupancy bathrooms to be gender-neutral (AB 1732). Illinois (Public Act 101-0165), New Mexico (HB 338), and Vermont have since adopted similar laws.
In 2021, a federal court in Tennessee blocked the state from enforcing a law requiring businesses to put up signs warning customers that transgender people were allowed to use bathrooms consistent with their gender. Since then, Tennessee has been permanently blocked from enforcing its bathroom law.
That same year, the Illinois appellate court ruled in Hobby Lobby Stores, Inc. v. Sommerville. That case found that denying transgender employees access to the bathroom of their choice violates the Illinois Human Rights Act.
Landmark SCOTUS Case: Bostock v. Clayton County (2020)
In 2020, the U.S. Supreme Court held in the landmark case Bostock v. Clayton County that discrimination against people for their sexual orientation and gender identity was prohibited in the workplace. However, the decision was narrow. And the justices made it clear that it did not address bathroom access.
The U.S. Supreme Court has thus far shied away from hearing cases involving bathroom access based on gender identity in the workplace. However, following Bostock, the Equal Employment Opportunity Commission issued guidelines in 2021 prohibiting employers from denying employees equal access to bathrooms, locker rooms, or showers that are consistent with the employee's gender.
OSHA Best Practices
The U.S. Department of Labor's Occupational Safety and Health Administration (OSHA) has issued guidance with best practices for bathroom access for transgender employees. The main requirement is to create safe and convenient access to bathrooms consistent with an employee's gender identity.
These best practices tell employers they cannot require employees to provide medical or legal documentation of their gender identity as a prerequisite to using the bathroom that aligns with their gender.
It is important to note that these best practices are not legally binding. So employers are not required to adhere to these guidelines. However, if a claim was brought to OSHA regarding bathroom access issues, OSHA may take this guidance into account when conducting its review.
OSHA requires all employers to provide all employees with sanitary and available bathrooms and further prohibits employers from imposing unreasonable restrictions on bathroom access to employees.
Bathroom Access in Schools
According to the 2015 report issued by the National Center for Transgender Equality, 77% of K–12 students who identify as transgender or were perceived as transgender have reported being mistreated in schools. Among those students:
- 54% reported being verbally harassed
- 24% reported being physically attacked
- 13% reported being sexually assaulted
Most federal circuit courts support transgender students accessing bathrooms and facilities that align with their gender identity. The majority say that discrimination against students due to their gender identity or transgender identity is prohibited under the following laws:
- Title IX of the Education Amendments of 1972
- Equal Protection Clause of the Fourteenth Amendment
Title IX prohibits discrimination on the basis of sex in public schools, and the Equal Protection Clause requires states to treat individuals equally by law.
However, a few circuits approach these issues differently, causing a "circuit split." This means two or more federal circuit courts of appeals have conflicting rulings on the same legal issue.
The Third, Fourth, Seventh, and Ninth Circuits have found that protections for transgender students under Title IX and the Equal Protection Clause include access to bathrooms consistent with their genders. The Eleventh Circuit has reached the opposite conclusion. This type of split often leads to a case before the Supreme Court.
Although both proponents and opponents have asked the U.S. Supreme Court for clarification on protections for transgender students under Title IX and the Equal Protection Clause, the U.S. Supreme Court has long tried to stay out of the debate by declining to take cases regarding bathroom access for transgender people.
Ashton Whitaker v. Kenosha Unified School District No. 1 Board of Education (2017)
Seventh Circuit – Illinois, Indiana, and Wisconsin
In 2016, Ashton Whitaker — a transgender boy —filed suit against the Kenosha Unified School District in Wisconsin. He had been denied access to the boys' bathrooms at his high school. Additionally, the school insisted on using Whitaker's "deadname" and incorrect pronouns.
(A deadname is the birth name of a transgender person who has changed their name during their gender transition.)
Whitaker's complaint also alleged that the school:
- Segregated him from other students on overnight school trips
- Required legal or medical documentation to allow Whitaker to use the boys' bathrooms
- Refused to accept letters from Whitaker's pediatrician confirming his gender identity and instead required him to undergo a surgical transition
- Proposed making all transgender students wear colored wristbands to monitor their bathroom use
The federal district court ruled in favor of Whitaker. The judge ordered the school to cease the discriminatory policy of not allowing him to use the boys' bathrooms. Further, the school was prohibited from punishing him for using the boys' bathrooms and monitoring his bathroom use.
In 2017, the Seventh Circuit Court of Appeals affirmed the federal district court's decision unanimously. The Seventh Circuit held that transgender students are protected from discrimination under Title IX and the Equal Protection Clause.
The school appealed to the U.S. Supreme Court later that year. But it ultimately withdrew the appeal, leaving the Seventh Circuit decision in place.
Parents for Privacy v. Dallas School District No. 2 (2020)
Ninth Circuit - Alaska, Arizona, California, Guam, Hawaii, Idaho, Montana, Nevada, Northern Mariana Islands, Oregon, Washington
In 2015, a transgender boy in Dallas, Oregon, asked his high school to allow him to use the boys' locker room. A few months later, the school implemented a “Student Safety Plan" that allowed the student to use the high school's locker rooms, restrooms, and showers consistent with his gender identity.
A small group of parents and students began to express concerns to school officials and the school board about the Student Safety Plan. However, both school officials and the school board supported the Student Safety Plan and instead offered to allow those concerned students to use the unisex staff lounge.
In 2017, Parents for Privacy filed a complaint in federal district court against Dallas School District No. 2. The lawsuit alleged that the School District's policy allowing transgender students access to bathrooms aligning with their gender identity violated several constitutional rights of cisgender students and parents, including:
- The students' right to privacy
- Parental right to direct the education and upbringing of their children
- Religious freedom
The case was ultimately dismissed in 2018. The federal district court found that the School District's policy properly adhered to Oregon's anti-discrimination law, which requires public schools to allow students access to facilities corresponding with their gender identity.
The Ninth Circuit Court of Appeals affirmed the federal district court's decision in 2020 upon appeal by Parents for Privacy. Parents for Privacy filed a petition to the U.S. Supreme Court to review the Ninth Circuit's decision, which was denied later that year.
Doe v. Boyertown Area School District (2018)
Third Circuit - Delaware, New Jersey, Pennsylvania, U.S. Virgin Islands
In 2017, a student sued the Boyertown Area School District in Pennsylvania. They alleged that allowing transgender boys to use the same bathroom and locker room as the student violated their right to privacy.
The student asked for an injunction to prohibit the School District from allowing transgender students to use the bathrooms and locker rooms consistent with their gender. The federal district court denied the student's motion for a preliminary injunction.
In 2018, the Third Circuit Court of Appeals ruled in favor of the School District and held that allowing transgender students to use spaces that align with their gender did not violate the right to privacy of cisgender students. The student petitioned the U.S. Supreme Court to review the Third Circuit's decision. But the U.S. Supreme Court declined to hear the case in 2019, leaving the Third Circuit's decision in place.
G.G. v. Gloucester County School Board (2020)
Fourth Circuit - Maryland, North Carolina, South Carolina, Virginia, West Virginia
Gavin Grimm was a high school student in Virginia who identified as a transgender male. School officials initially gave him permission to use the boys' bathroom after he came out. About two months later, parents of other students at the school complained to the Gloucester County School Board. This prompted the school board to issue a policy requiring students to use the bathroom that aligns with their biological sex and not their gender identity.
Grimm refused to use the girls' bathroom. He was instead given the option to use the school's unisex bathrooms, which were retrofitted broom closets. Grimm opted to use a bathroom in the nurse's office instead.
In 2015, Grimm sued the School Board in federal district court, claiming that the School Board's policy discriminated against him and violated Title IX and the Equal Protection Clause.
The federal district court ruled in the School Board's favor, deciding that Title IX prohibits discrimination on the basis of sex and does not include gender identity.
Note: These proceedings took place before the Supreme Court's decision in Bostock v. Clayton County (discussed above).
During court proceedings, Judge Doumar called being transgender a “mental disorder" and described Grimm as a female who “wants" to be male. Grimm appealed to the Fourth Circuit Court of Appeals.
In 2016, the Fourth Circuit overruled the lower court's decision and remanded the case back to the federal district court. The appeals court said the lower court did not adhere to guidance issued by the Department of Education under the Obama administration. At the time, the Department of Education's Office for Civil Rights issued guidance that transgender students must be treated consistent with their gender identity.
In its opinion, the Fourth Circuit noted the district court judge's “extraneous remarks or suppositions that marred the hearing," such as:
- Calling gender dysphoria a “mental disorder"
- Describing Grimm as a female who “believes" he “wants" to be male
- Expressing skepticism about the medical science behind whether urinary tract infections can be caused by withholding urine for too long
The case was appealed to and accepted by the U.S. Supreme Court, but it ultimately vacated the Fourth Circuit decision without deciding on the merits of the case. This happened because President Trump withdrew the OCR's guidance shortly after taking office.
The U.S. Supreme Court remanded the case, and the federal district court eventually ruled in favor of Grimm in 2019. The judge held that Grimm had indeed been discriminated against under Title IX and the Equal Protection Clause.
In 2020, the School Board appealed to the Fourth Circuit, which upheld the federal district court's decision and relied heavily on Bostock. In 2021, the School Board petitioned the U.S. Supreme Court to review the Fourth Circuit's decision, but the U.S. Supreme Court denied the petition, leaving the Fourth Circuit decision in place.
Drew Adams v. School Board of St. Johns County, Florida (2022)
Eleventh Circuit - Alabama, Florida, Georgia
Drew Adams — a 16-year-old transgender boy — was denied access to his Florida high school's boys' bathrooms. Instead, he had to use the school's gender-neutral bathroom or girls' bathrooms.
In 2017, Adams filed suit in federal district court against the St. Johns County School Board. He alleged that the restrictions and bathroom policy violated his rights under Title IX and the Equal Protection Clause.
In 2018, the federal district court ruled for Adams. The judge found that the school's bathroom policy discriminated against Adams under Title IX and the Equal Protection Clause. The school was ordered to allow Adams to use the bathroom that corresponds with his gender identity.
The School Board appealed the decision to a three-judge panel of the Eleventh Circuit Court of Appeals, where the Eleventh Circuit affirmed the district court's decision in 2020. However, in response to a motion for reconsideration, in a 2021 decision, the Eleventh Circuit limited the discrimination to the Equal Protection Clause and chose not to address the Title IX claim.
A month later, the Eleventh Circuit vacated both decisions and chose to rehear the case with all judges of the court as opposed to the original three-judge panel.
In 2022, the Eleventh Circuit ruled against Adams, holding that “Title IX allows schools to provide separate bathrooms on the basis of biological sex" and that the School Board's bathroom policy did not violate Title IX or the Equal Protection Clause.
Judge Pryor dissented and stated that the decision was at odds with modern medical science by failing to account for “the primacy of two biological components in particular, gender identity and neurological sex." Judge Jordan dissented and called the school's policy arbitrary because school officials rely on a student's documents submitted at the time of enrollment to dictate a student's gender.
In this case, the school board rejected the student's updated birth certificate and driver's license with his male designation. However, the same officials have said they would have accepted those documents if they had been presented by a new student.
Getting Legal Help
If you need guidance in navigating these laws or your state's laws, an attorney can help. A civil rights lawyer, employment lawyer, or discrimination lawyer can explain the protections provided above, along with any protections your state may provide.
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