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Bathroom politics and transgender discrimination: House GOP bill is constitutionally and legally suspect

Privacy claims too often are incorrectly invoked to thwart another powerful legal claim – the right to equal treatment.

Prejudice always seems to start in the bathroom. First it was the separate but equal doctrine that forced African-Americans to use segregated facilities, including bathrooms. Then it was Phyllis Schlafly and those opposed to the Equal Rights Amendment for women who, as a way to defeat the amendment, raised the fear of men using women’s bathrooms. Opposition to gay rights was flamed by visions of sexual predators lurking around bathrooms. Now it is the opponents of transgender rights who are using the bathroom as a way of furthering prejudice by supporting legislation requiring individuals to use bathrooms designated for them based on their birth gender. 

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David Schultz

Yes, privacy is an important legal right in America and should be respected. Yet often concerns about privacy mask underlying hostility and discrimination. Privacy claims too often are incorrectly invoked to thwart another powerful legal claim – the right to equal treatment. When one looks at the Minnesota House Bill HF 3396 – The Bathroom Bill – requiring individuals to use the bathroom that corresponds to their birth assigned gender, it is clear that the proposal should be considered unconstitutional under both the U.S. and Minnesota Constitutions, and illegal under both federal and state law.

Constitutional issues

The Fourteenth Amendment’s Equal Protection clause declares that no state shall deny to any person within its jurisdiction “the equal protection of the laws.” While originally adopted after the Civil War to prevent discrimination against African-Americans, the Supreme and lower federal courts have used the Equal Protection clause to apply to many forms of discrimination, including that based on sex. Courts have also used the Equal Protection Clause to address discrimination against gays and lesbians, and in recent years it has been invoked to protect transgender individuals. In Glenn v. Brumby, 663 F.3d 1312 (11th Cir. 2011), a federal court of appeals ruled that the termination of a transgender person by the State of Georgia because she was transitioning from one gender to another was a form of sex discrimination that violated the Fourteenth Amendment.

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The Minnesota Supreme Court has yet to adjudicate and rule on a transgender discrimination claim under the state constitution. Were it to do so it would reach arguments similar to that in Glenn. The reason is that in cases such as State v. Russell, 477 N.W.2d 886 (Minn.1991) the court has argued that the State’s Equal Protection Clause effectively provides as much or more exactly scrutiny or protection against discrimination when compared to the U.S. Constitution. If that is the case one can make a strong argument that the bathroom bill also violates the Minnesota Constitution.

Statutory issues

Turning to statutory claims, Title VII of the 1964 Civil Rights Act bans workplace discrimination based on, among the factors, sex. The law has been invoked to prohibit discrimination against transgender individuals. The basis for applying it that way started in Oncale v. Sundowner Offshore Services, 523 U.S. 75 (1998), where Justice Antonin Scalia ruled for the court that title VII applies to any form of sex-based discrimination. Discrimination against transgender individuals is sex-based. In cases such as Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004), Rosa v. Parks W. Bank & Trust Co., 214 F.3d 213 (1st Cir. 2000), and Schwenck v. Hartford, 204 F.3d 1187, 1201-02 (9th Cir. 2000), three different circuits of the federal courts agreed that Title VII applies to transgender discrimination.

Most directly and recently, in January 2015 Deluxe Financial Services settled a Title VII case arising out of the company and its employees harassing a transgender person, including forcing the individual to use the bathroom as determined by her birth gender. The federal Equal Employment Opportunity Commission had ruled in favor of the transgender person, saying the company violated Title VII of the Civil Rights Act of 1964 by subjecting her to “a hostile work environment and disparate treatment because of her sex, including because Ms. Austin is a woman who is transgender …”

Finally, at the state level, the clearest indication that the bathroom bill is illegal resides in the how it seeks to amend the Minnesota Human Right Act (MHRA) which, among other things, bans discrimination based on “sexual orientation.” HF 3396 explicitly changes that law to create a bathroom exception. In Goins v. West Group, 635 N.W.2d 717 (2001) the Minnesota Supreme Court adjudicated a claim that a company had violated the act when it required a transgender person to use the bathroom that corresponded to her birth gender. The court ruled no in a bizarre case.

Ripe for reversal

On the one hand the court declared that the MHRA defines “sexual orientation” as including “having or being perceived as having a self-image or identity not traditionally associated with one’s biological maleness or femaleness,” therefore suggesting that a transgender individual may make out a potential claim under the act. However the court then went on to argue that the employee had failed to establish that she had a right to use the bathroom designed for use by her biological gender and therefore her sexual orientation claim failed. Logically the case made no sense – the case was not about a transgender person wanting to use the bathroom designed by her birth gender and whether she had a right to use it. Goins is ripe for reversal, and that too in part explains the reasons for the bathroom bill.

Overall, there are strong reasons to think that House Republican bathroom bill — which is the subject of a hearing at 8:15 a.m. on Tuesday, April 12 — is legally suspect for several reasons at the federal and state level. One should not let false claims of privacy trump civil rights. Prejudice has no place in the bathroom.

David Schultz is a Hamline University professor of political science and the author of “Election Law and Democratic Theory” (Ashgate, 2014) and “American Politics in the Age of Ignorance” (Macmillan, 2013). He blogs at Schultz’s Take, where a version of this piece first appeared. 


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