Bathrooms in the courts

My last post dealt with the bogus "issue" of restroom use by trans people in the context of passing civil rights legislation. As NCTE director Mara Keisling recently noted in an interview for Pam's House Blend, that's unfortunately going to be the focus of a lot of work in the next few years. It's also, unfortunately, going to continue to be the focus of some equally if not more difficult work in the courts, in employment discrimination cases. The challenges that "bathroom issues" present in the courts are illustrated by the Ninth Circuit Court of Appeals's recent decision in Kastl v. Maricopa County Community College, 2009 WL 990760 (9th Cir. Apr. 14, 2009) (No. 06-16907; unpublished).

Ms. Kastl was an instructor and student at MCCC in 2000 and 2001, during which time she transitioned from male to female. Following complaints from students about her presents in the women's bathroom, she was instructed that she would be required to use the men's room until she could present proof of having completed genital surgery. (No student ever complained of seeing her genitals.) She was not rehired for the next semester. The case survived a motion to dismiss, but was thrown out on summary judgment (i.e., the court didn't think Kastl had enough evidence to go to trial.)

The Ninth Circuit affirmed. The court recognized that under the law of this and other circuits, discrimination motivated by a transgender (or any other) plaintiff's gender-non-conforming conduct or appearance can constitute illegal sex discrimination. It said that Kastl had presented enough evidence to raise an inference of discrimination. But it also said that the school satisfied its burden of showing a non-discriminatory motive. What the school showed was that students complained about Kastl's presence in the women's room and (in the words of a filing by the school) "expressed concerns regarding their privacy and/or safety." In response, the court said, Kastl had failed to provide sufficient evidence that the school's actions were in fact based on sex-stereotyping discrimination. All this the court said in two paragraphs; both the trial and appellate court opinions give no indication of the actual evidence in the case regarding the school's motivation. The Ninth Circuit added a footnote:

We note that the parties do not appear to have considered any type of accommodation that would have permitted Kastl to use a restroom other than those dedicated to men. After all, Kastl identified and presented full-time as female, and she argued to MCCCD that the men's restroom was not only inappropriate for but also potentially dangerous to her.

But this observation didn't keep the appeals court from throwing out the case. Both the trial and appellate court decisions say next to nothing about what evidence there was concerning the employer's motive.

Despite the sparse opinions, this case illustrates why cases involving disputed bathroom use by trans employees are so difficult to win, even when the employer's actions are (at least to this blogger) obviously discriminatory.

Medical sex. In the trial court, Kastl sought to prove that she was in fact medically female. This is an interesting strategy; if it could be proved, it would presumably demonstrate that the employer's bathroom "policy" was utterly baseless and was simply based on discrimination because of Kastl's gender history. But this strategy is also an uphill battle, whether or not the plaintiff has had genital surgery, because it depends on mustering scientific evidence, and persuading the court, on a complex issue - the criteria for determining "medical" sex - that (as I have discussed elsewhere) medical experts disagree on. Whatever the merits of this strategy in general, it was not successful here, and indeed the court was dismissive of Kastl's attempts to dispute her medical sex.

Flimsiness of employe's reason: "privacy and/or safety." The Ninth Circuit panel apparently believed that students' asserted "concerns about their privacy and/or safety" amounted to a legitimate, nondiscriminatory motive. There is no indication of why students thought their privacy or safety might be threatened, and this is not just because the court's opinion is terse: being around a trans person in the bathroom does not affect anyone's privacy or safety, so long as the toilets have stalls, and trans people are not presumed to be dangerous. That this is so is underscored by the school's focus on genital surgery. How would students' privacy or safety be threatened before the plaintiff's surgery but not threatened afterward? The students wouldn't even be able to tell the difference! It is well-established that the prejudices of third party patrons cannot give an employer a defense, even if those prejudices would have real effects on the employer. This nothing more than a case of third-party prejudice, and in the absence of any evidence to substantiate these concerns, the court should have seen right through them. It should have, but it didn't.

Flimsiness II: "liability." In a similar case, the Tenth Circuit held that an employer's fear of liability consituted a legitimate, nondiscriminatory motive. The court acknowledged that the law would be against any offended person who tried to sue the employer; in the only reported case of this sort, a federal appeal courts rejected claims that permitting a trans person to use the same restroom as the plaintiff constited religious and/or sex discrimination and/or harassment. But the Tenth Circuit said it didn't matter whether an employer would actually be liable, only whether the employer's fear of liability was genuine. This, too, is nothing more than dressed-up "customer preference" scenario, where the employer fears economic consequences from a third party's prejudice toward the plaintiff. Again, the right conclusion would be that this is not a legitimate, nondiscriminatory motive, but the court bought it.

Flimsiness III: Ease of accommodation. The Ninth Circuit acknowledged the possibility that there were options other than firing Kastl or forcing her to use the men's room. In many workplaces, it would be easy enough to provide that either the trans employee, or any person not wishing to use the same bathroom as the trans employee, use a single-person bathroom. While the law does not require "reasonable accommodations" in sex cases as it does in disability cases, the availability of an obvious and cost-free alternative would certainly suggest that the employer's stated motive was a pretext. Unfortunately, an accommodation might well be possible but might not be totally obvious and cost-free. For example, in the Tenth Circuit case the plaintiff was a bus driver, and needed to use various public restrooms around town.

Catch-22. The Ninth Circuit's opinion recognizes that, in contrast to the employer's baseless "privacy and/or safety" concerns, Ms. Kastl had very real reasons for avoiding the men's room. The result is that if employers are permitted to adopt genital-based bathroom policies, most trans people will simply be unemployable. Yet courts in these cases typically treat such policies as obvious and natural, and trans employees' objections to them as frivolous. It might well be difficult to prove the danger of harassment or violence in a particular case, especially since trans employees, quite reasonably, will typically face firing before using the bathroom of their birth-assigned gender. It ought to be possible, however, to bring in evidence from outside the case to establish the reasonableness of the employee's fears. However, courts may well insist that this "Catch-22" theory is only valid when it applies to all members of one gender, and that, like employee dress codes, these policies are permissible because they burden men and women equally.

This theory would fit nicely into the disparate impact concept. Even if it were accepted that such policies are not intentionally discriminatory - or, what amounts to the same thing, based on third-party prejudice - they clearly have the effect of making it impossible for most trans folks to do the job without subjecting themselves to intolerable conditions. In a disparate impact claim, the employer must prove that their policy is based on "business necessity" - something that they clearly couldn't do here. This is one illustration of why, even though there is some good case law out there now, a trans-inclusive ENDA is badly needed. As drafted, however, ENDA would not provide for disparate impact claims based on gender identity. And I think courts are unlikely to accept a disparate impact theory here based on sex, for the same reasons that they may be iffy on disparate treatment claims.

In sum, it is easy to explain why, as a matter of law and as a general matter of fact, a case like this ought, theoretically, to be winnable. But courts are all too willing to accept dubious assertions by employers at face value, and all too ready to discount the assertions of trans people. Even when the facts should support the plaintiff, the court's preconceptions may lead it to see those facts in a way that doesn't support the claim. Add to that potential problems of proof and some uncertainties in current case law, and you have some very, very hard cases to win.