I reported in a recent post on the two published U.S. opinions discussing the effect on facilities usage of statutes prohibiting "gender identity" discrimination. These cases ruled that segregating bathrooms by biological sex did not constitute "gender identity" discrimination. In this post, I will discuss the criticisms of those opinions. I list 7 criticisms here. There are more, but these are the main ones.
- The courts said that transgender bathroom exclusion is based on biological sex, not "gender identity." The defendants did not impose separate rules on transgender persons because the rules affected all persons, transgender and non-transgender. However, critics question whether it is possible to separate the two so neatly. In the case of a transsexual person, whose psychological gender identity is opposite to that of the biological sex, it may not be possible to discriminate based on biological sex without also discriminating based on gender identity. Arguably, since sex and gender are opposites in such cases, honoring one ipso facto means dishonoring the other. Biological sex segregation ignores non-traditional gender identity.
- The courts' interpretations of the statute, which found that they did not apply to bathrooms, gave the statutes a narrower interpretation than their plain words indicate. However, this may have contradicted the legal principle, in effect in both Minnesota and New York, that remedial statutes are to be construed liberally (i.e., not narrowly). In fact, the first section of the Minnesota statute explicitly reiterates the rule: "The provisions of this chapter shall be construed liberally for the accomplishment of the purposes thereof."
- Critics also complain about the courts' failure to recognize the legal principle, in effect in both Minnesota and New York, that the "plain meaning" of the words of a statute are to be used, not a secret meaning divined by the court. The plain meaning of the words of the Minnesota statute apply to all workplace discrimination, without exception. Nonetheless, the Minnesota court found an exception for the workplace bathroom. Furthermore, the Court said that the statute requires proof of sex reassignment surgery, though it makes no apparent reference to it. To the contrary, the statute explicitly says that it applies regardless of "one's biological maleness or femaleness."
- The Minnesota Supreme Court bolstered its unusual interpretation by reference to the legislative history of the statute, saying that there appeared to be no legislative intent to change the cultural prefence for same-sex bathrooms. However, under the usual understanding of the "plain meaning" rule, legislative "intent" is irrelevant unless the words of the statute are ambiguous. The Court pointed to no ambiguity in the words of the statute. Therefore, its reference to legislative intent, aside from the fact that the legislative history is silent on this point, fails to give proper credence to the plain meaning of the statute. The recent Schroer case supports this criticism, noting that, as Justice Scalia wrote for a unanimous US Supreme Court: "it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed."
- The court opinions ignored medical reality by requiring sex reassignment surgery prior to recognition of a new gender identity. This violates the medical standards of care (http://www.hbigda.org/, which prohibit primary genital sex reassignment until an individual has lived for at least one year in the opposite gender role successfully. In addition, although primary genital surgery to create female genitalia is considered routine at this point, the same is not true for surgery to create male genitalia (phalloplasty). Such surgery does not replicate typical male anatomy reliably, causes disfiguring arm scars, and is much more expensive ($50,000+). As a result, most of those transitioning from female to male never have phalloplasty, and most government agencies do not consider it necessary for gender identity recognition.
- The Minnesota Supreme Court's ruling may conflict with the Americans With Disabilities Act. The court said, in effect, that the employer may ask to see a transgender employee's surgical status. Section 12112(d) (1) of the ADA, however, prohibits an employer from requesting post-employment medical examinations and inquiries. See EEOC Enforcement Guidance: Disability-Related Inquiries and Medical Examinations of Employees. For my legal friends, see also Giaccio v. NYC, 2005 U.S. Dist. LEXIS 642; Shaver v. Independent, 350 F.3d 716, 722 (8th Cir. 2003); and Conroy v. NYS, 333 F.3d 88, 94 (2d Cir. 2003).
- Genital surgery that no one will see (at work, anyway) is a red herring issue. The real issues here are comfort with heterosexual norms and homophobia. Visible androgyny -- blurring of sex roles -- raises the specter of homosexuality, which makes old-fashioned judges and businessmen uncomfortable, and they retain the privilege to ignore statutory commands against discrimination.
- One court has found that there is no legal requirement for prohibiting transgender persons from using the public restroom of their new gender. In the Cruzan case, the federal District Court for the District of Minnesota held that it was sufficient to provide a bathroom alternative for any non-transgender employees who prefer not to share the public bathroom with a transgender person. This does not, of course, require employers to take this course. It does, however, give enlightened employers a safe harbor for choosing to do so.