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This is not legal advice, which can only be given by an attorney admitted to practice law in your jurisdiction after hearing all of the facts and circumstances in a particular case.

Friday, April 28, 2006

Issue: Legal effect of "Gender Identity" statutes on facilities usage

There are only two published court cases, to my knowledge, discussing whether a statute prohibiting gender identity discrimination affects the right of a transgender person to use the bathroom of their new gender identity. In both cases, one in New York and one in Minnesota, the courts denied the right of the plaintiff to use the bathroom of their new gender identity.

In the 2005 New York case, Hispanic AIDS Forum v. Bruno, an NYC building owner allegedly refused to renew a lease of office space because of the use of public bathrooms by transgender clients of the tenant, a social service agency. NYC law prohibits discrimination based on "gender identity." Nonetheless, the majority opinion held that the law did not require the building owner to honor the gender identity of the Forum's transgender clients for purposes of bathroom use.

"Gender" in the City Code was redefined in 2002 as "a person's gender identity, self-image, appearance, behavior or expression, whether or not that gender identity, self-image, appearance, behavior or expression is different from that traditionally associated with the legal sex assigned to that person at birth."

The court threw the case out because the transgender individuals were not selectively excluded from the bathrooms. Rather, they were excluded on the same basis that all biological males and/or females are excluded from certain bathrooms -- their "biological" sex. The landlord's discrimination for purposes of bathroom use, though it denied transgender individuals recognition of their gender identity, did not discriminate on the basis of their gender identity.

The court referred favorably to the Minnesota Supreme Court's 2001 decision in Goins v. West Group. In that case, a transgender employee claimed discrimination based on her employer's exclusion of her from the women's bathroom. The Minnesota law prohibited employment discrimination based on sexual orientation, defined in part as "having or being perceived as having a self-image or identity not traditionally associated with one's biological maleness or femaleness."

The Minnesota court said that the employer's bathroom rule did not discriminate on the basis of gender identity. The rule contained no reference to gender identity; therefore, there was no discrimination based on gender identity. The Court said that the rule discriminated based on biological sex, not gender identity. Therefore, it did not violate the statute.

Even if the employer's rule were interpreted as gender identity discrimination, the Court questioned whether there was any intent to change the "cultural preference" for same-sex bathrooms. Since there was no legislative history on this point, the court decided that the words of the statute did not apply to bathroom usage.

The Goins court specifically noted that it did not know whether the plaintiff was "biologically" male or female. Although the statute made no reference to a requirement of proof of sex reassignment surgery in order to be protected from discrimination, the court decided that such proof is required in bathroom discrimination cases. It indicated that, upon proof that the plaintiff was "biologically" female, the plaintiff should be permitted to use the women's bathroom. The court said that such proof was required because the employee's case made the claim that the rule had a "disparate impact" on a protected class. The blog format is not a good one for explaining complicated points of law, so suffice it to say that "disparate impact" cases have special rules requiring the complainant to show they have the proper qualifications for the job. Here, the court said that proof of sex reassignment surgery is the "qualification" for using the women's bathroom.

The bottom line on these opinions is that the only two published cases interpreting statutes prohibiting "gender identity" discrimination in the facilities usage context have ruled that these statutes did not prohibit discrimination based on biological sex in the bathroom.

I'll discuss the criticisms of these cases in a separate post.

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