A Crap Shoot

Not the elections but rather the one that will be going on in the Supreme Court, twenty-three states are suing the Department of Education over Title IX.

Virginia School Board Asks Supreme Court to Block Order on Transgender Bathroom Use
Gloucester County board wants to halt April ruling that said its bathroom policy violated federal law
The Wall Street Journal
By Jess Bravin
July 13, 2016

WASHINGTON—A Virginia school board asked the Supreme Court Wednesday to block a lower court order allowing a transgender student who identifies as male to use the boys’ restroom.

The case is the first over transgender restroom use to reach the high court. It could provide the justices an opportunity to decide whether prohibitions of sex discrimination extend to gender identity—a position taken by some Obama administration agencies, but disputed by more than a dozen Republican-leaning states.

“For decades, our nation’s schools have structured their facilities and programs around the sensible idea that in certain intimate settings men and women may be separated ‘to afford members of each sex privacy from the other sex,’” the Gloucester County School Board said in its petition.

The board wants to temporarily halt implementation of an April decision by a three-judge panel of the Fourth U.S. Circuit Court of Appeals in Richmond, Va., which ruled in favor of high-school junior Gavin Grimm that the policy violated federal law barring discrimination based on sex.
[…]
The Gloucester board addressed its application to Chief Justice John Roberts, who apart from presiding over the Supreme Court oversees the Fourth Circuit. He can act on the request himself or refer it to the full court for action. No decision is expected before additional briefing by both sides in the case.

So it looks like between the Virginia case and the 23 states lawsuit we are going to the Supreme Court. In an article in May the LA Times wrote this about the administration’s legal interpretation of Title IX.

To bolster their argument, attorneys for the Obama administration argue that the ban on sex discrimination has evolved since the 1960s, when it was seen chiefly as forbidding employers from denying women the right to get jobs that had been reserved for men. By the 1970s, the law had been expanded to forbid sexual harassment of women in the workplace.

By 1989, the Supreme Court, in Price Waterhouse vs. Hopkins, upheld a sex discrimination claim brought by a woman who was denied partnership at an accounting firm because some male colleagues thought she was gruff and aggressive, not “feminine,” in her attire.

Nearly a decade later, Justice Scalia spoke for a unanimous court in reviving a sex discrimination suit brought by a man who had worked on an oil rig off Louisiana and complained he was harassed, bullied and threatened with rape by the other men in showers. Scalia said this was clearly discrimination based on sex, even though it involved only men.

“Male-on-male sexual harassment was assuredly not the principal evil Congress was concerned with when it enacted” the 1964 Civil Rights Act, Scalia wrote in Oncale vs. Sundowner Offshore Services. “But statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils,” and the words of the law can be easily read to forbid “sexual harassment of any kind,” he said.
[…]
“The courts have interpreted the ban on sex discrimination very broadly. I’m reasonably confident the 4th Circuit will strike down HB 2 because it reflects hostility to transgender people,” he said.

On the EEOC webpage they list the court cases that they based their ruling that sex discrimination also covers trans people, the page list the two Supreme Court cases as their basis for their ruling, Oncale v. Sundowner Offshore Services [the case mentioned above in the LA Times article in which justice Scalia said Title VII covers same sex discrimination], and the Price Waterhouse v. Hopkins. They go on to list other court cases for their bases,

Glenn v. Brumby, 663 F.3d 1312 (11th Cir. 2011).  The plaintiff, a transgender female, brought a claim under 42 U.S.C. § 1983 alleging unlawful discrimination based on sex in violation of the Equal Protection Clause when she was terminated from her position with the Georgia General Assembly.  Relying on Price Waterhouse and other Title VII precedent, the court concluded that the defendant discriminated against the plaintiff based on her sex by terminating her because she was transitioning from male to female.  The court stated that a person is considered transgender "precisely because of the perception that his or her behavior transgresses gender stereotypes."  As a result, there is "congruence" between discriminating against transgender individuals and discrimination on the basis of "gender-based behavioral norms."  Because everyone is protected against discrimination based on sex stereotypes, such protections cannot be denied to transgender individuals.  "The nature of the discrimination is the same; it may differ in degree but not in kind."  The court further concluded that discrimination based on sex stereotypes is subject to heightened scrutiny under the Equal Protection Clause, and government termination of a transgender person for his or her gender nonconformity is unconstitutional sex discrimination.  Although in this case the defendant asserted that it fired the plaintiff because of potential lawsuits if she used the women's restroom, the record showed that the plaintiff's office had only single-use unisex restrooms, and therefore there was no evidence that the defendant was actually motivated by litigation concerns about restroom use.  The defendant provided no other justification for its action, and therefore, the plaintiff was entitled to summary judgment.

Also,

Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004).  The plaintiff alleged that he was suspended based on sex after he began to express a more feminine appearance and notified his employer that he would eventually undergo a complete physical transformation from male to female.  The court held that Title VII prohibits discrimination against transgender individuals based on gender stereotyping.  The court determined that discrimination against an individual for gender-nonconforming behavior violates Title VII irrespective of the cause of the behavior.  The court reasoned that the "narrow view" of the term "sex" in prior case law denying Title VII protection to transgender employees was "eviscerated" by Price Waterhouse, in which the Supreme Court held that Title VII protected a woman who failed to conform to social expectations about how women should look and behave.

Other cases were,

Rosa v. Parks W. Bank & Trust Co., 214 F.3d 213 (1st Cir. 2000).  Citing Title VII case law, the court concluded that a transgender plaintiff, who was biologically male, stated a claim of sex discrimination under the Equal Credit Opportunity Act by alleging that he was denied a loan application because he was dressed in traditionally female attire.

Creed v. Family Express Corp., 101 Fair Empl. Prac. Cas. (BNA) 609, 2007 WL 2265630 (N.D. Ind. Aug. 3, 2007).  The plaintiff, a transgender female, alleged facts permitting an inference that she was terminated because of gender stereotypes; specifically, that she was perceived by her employer to be a man while employed as a sales associate and was fired for refusing to present herself in a masculine way.

Lopez v. River Oaks Imaging & Diagnostic Group, Inc., 542 F. Supp. 2d 653 (S.D. Tex. 2008).  The plaintiff alleged that she was subjected to sex discrimination when the employer rescinded its job offer after learning that she was transgender.  Denying the employer's motion for summary judgment, the court concluded that the plaintiff's claim was actionable as sex discrimination under Title VII on the theory that she failed to comport with the employer's notions of how a male should look.  A finder of fact might reasonably conclude that the employer's statement that the job offer was rescinded because she had "misrepresented" herself as female reflected animus against individuals who do not conform to gender stereotypes.

Over a dozen other cases were cited by the EEOC in determining their ruling that gender identity and expression is covered under Title VII and the same cases apply to Title IX.

The case that I like was Brumby which was a unanimous opinion, in the decision the judge wrote was the judge’s analogy that if a person changes their religion, suppose that changed their religion from being a Christian to being a Jew, it is still religious discrimination.

But even with all these cases it will still be a crap shoot when it gets to the Supreme Court, we have become a political football in this election season.