By Carlos A. Ball

Gavin Grimm Speaks at Title IX Protest. Photo credit: Geoff Livingston

The Supreme Court recently decided not to hear the case of Gavin Grimm, a transgender male student who was prohibited by his Virginia high school from using boys’ bathrooms. The question raised by Grimm’s lawsuit is whether federal law protects the ability of transgender students to use school bathrooms that correspond to their gender identity. The Supreme Court sent the case back to the lower court given the federal government’s changed legal position—while the Obama Administration contended that denying transgender students the ability to use bathrooms that match their gender identity violated federal law, the Trump Administration now claims that federal law does not prevent school districts from requiring students to use bathrooms according to their biological sex as assigned at birth.

Grimm’s lawsuit, and other cases like it such as the challenge to North Carolina’s so-called transgender bathroom law (also known as House Bill 2), is of great importance because it addresses the question of whether transgender individuals are legally entitled to do something that everyone else is permitted to do, namely to use bathrooms (and similar facilities such as changing rooms) that match their gender identity. But cases like Grimm’s raise an even more fundamental and important question: whether federal law protects sexual and gender-identity minorities from discrimination to begin with.

Federal civil rights statutes do not explicitly prohibit discrimination on the basis of sexual orientation or gender identity. Multiple efforts through the decades to amend the laws in ways that would provide such explicit protection have failed to make it through Congress. Nonetheless, in the last few years, a growing number of courts have held that discrimination against LGBT people constitutes a form of discrimination on the basis of sex. These courts have concluded that federal statutes that prohibit discrimination “because of sex” provide significant protection to LGBT people. (The Equal Employment Opportunity Commission has reached the same conclusion.)

Although these courts’ reasoning has varied depending on the particular facts of the disputes before them, their conclusions are sound and correct. It is the case that much of the discrimination aimed at sexual minorities is linked to issues of gender: many women, for example, who are discriminated against because they have intimate relationships with other women, would not be subject to that discrimination if they were in intimate relationships with men. The gender of the parties, in other words, is inextricably linked to the discrimination.

Similarly, employers sometimes fire transgender individuals once the latter identify as members of another gender. When an employer is willing to hire someone who identifies as male, for example, but then fires that same individual after she identifies as female, it constitutes a paradigmatic instance of discrimination “because of sex.” The employer was willing to employ the worker as long as she identified as male but not when she identified as female.

It is also the case that sexual minorities and transgender individuals are often discriminated against because they fail to act in ways that correspond with gender stereotypes. For example, employers frequently discriminate against gay men and transgender men because they believe them to be too “feminine.” As far back as 1989, the Supreme Court, in a case involving a female executive who was denied a promotion because the male partners at her firm thought she was too “masculine,” ruled that Title VII of the Civil Rights Act of 1964 prohibits employers from making employment decisions based on gender stereotyping.

Much to its credit, the Obama Administration, in cases such as Gavin Grimm’s, took the position that when schools prohibit transgender students from using bathrooms that correspond to their gender identity, they engage in sex discrimination in violation of Title IX of the Education Amendments of 1972. The fact that the Trump Administration has rejected that view is a serious blow to efforts to prevent the physical and psychological harm to transgender people caused by being prohibited from using the bathrooms of their choice. But even more problematically, the federal government’s changed position on bathroom access by transgender individuals strongly suggests that the Administration will oppose interpretations of current federal civil rights statutes as providing any protections for LGBT people against discrimination.

The early steps taken by the Trump Administration on LGBT rights indicate that the federal executive branch is no longer committed to LGBT equality. Furthermore, the Republicans who control Congress seem to be more concerned with the right of religious conservatives to discriminate against sexual and gender-identity minorities than with protecting LGBT people from discrimination. As a result, the extent to which federal civil rights laws can be used to remedy discrimination against LGBT people will likely depend on how the Supreme Court rules on the first case to reach it raising the question of whether such discrimination constitutes a form of sex discrimination. That issue might reach the Court in a bathroom access case, whether Gavin Grimm’s or that of another transgender litigant. In deciding the bathroom question, the Court may decide the even more fundamental question of whether federal civil rights statutes apply to LGBT people.

All of this means that we are at a peculiar and potentially troubling crossroad on LGBT rights in this country. On the one hand, same-sex couples have a constitutional right to marry. On the other hand, nationwide equality in crucial areas beyond marriage, including those of employment and housing, could depend on whether the Supreme Court follows the lead of several lower federal courts in holding that discrimination against LGBT people is a form of sex discrimination. The Trump Administration has signaled its views on that question by refusing to side with transgender students on issues of bathroom access. Whether the Supreme Court ultimately agrees with the Administration will determine whether LGBT people in our society remain, in crucial ways, second-class citizens. 

About the Author 

Carlos A. Ball is Distinguished Professor of Law at Rutgers University. He has written several books on LGBT Rights, including From the Closet to the Courtroom: Five LGBT Rights Lawsuits that Have Changed Our Nation. He lives in Brooklyn, New York, with his husband and two sons.