Does a Transgendered Biological Male Have The Right Use a Women's Restroom in New York City?:
Why a Local Gender Identity Discrimination Ban Has Become Controversial

By MICHAEL C. DORF

Monday, Apr. 11, 2005

Earlier this month, a New York security firm settled a case that charged the company with unlawfully discriminating on the basis of "gender identity." In two incidents, representatives of the firm had questioned the use of the women's restroom by persons who, while biologically male, identify themselves as female.

By so doing, the firm thereby violated New York City's Human Rights Law, as construed in official guidelines promulgated in 2002. The settlement requires the defendant to pay each claimant $2500 and to take measures to comply with the law in the future.

Just days earlier, in an unrelated case, a New York State intermediate appellate court had issued a contrary ruling. The court concluded that the city's ban on transgender discrimination is not violated by requiring transgendered persons to use the restrooms designated for persons with their biological sex.

Resolving the conflicting authorities may require further administrative, legislative and judicial action at the city and state level. In the meantime, New Yorkers and others will be left puzzling over a surprisingly difficult question: Who should be permitted to use the men's and women's rooms, respectively?

Gender Identity Discrimination: Why New York Is Right to Forbid It

Transgendered persons--people whose dress, mannerisms, speech patterns and social interactions do not match the typical pattern for those with their biological sex--are frequently victims of unfair discrimination.

A biological "man" who experiences life as a woman, and who speaks and dresses accordingly, may be no less capable of performing surgery or balancing corporate accounts than a man (or woman) who happily accepts the gender society prescribes for him (or her). And yet the transgendered person will, because of prejudice, have a harder time finding a welcoming employer.

Accordingly, it is perfectly appropriate, and indeed, laudable, for New York City's Human Rights Law to prohibit gender identity discrimination. However, it is unfortunate that the first cases to arise under the prohibition concern access to sex-segregated restrooms. That is because the application of the law in this context is problematic, and that may, in turn, discredit the law in the public eye.

To see why, it is useful to begin with the law governing sex discrimination.

Federal and State Law: Some Sex Stereotyping Counts as Sex Discrimination

Federal statutes prohibit sex discrimination in employment, places of public accommodation, and a variety of other contexts. So do state laws.

What constitutes sex discrimination? Here is an easy case: An accounting firm refuses to hire female accountants. That is clearly discrimination "because of sex," in violation of Title VII of the 1964 Civil Rights Act.

Here is a slightly harder, but still easy case: An accounting firm hires female accountants, but refuses to promote one to partner because she does not act in a lady-like fashion. In the 1989 case of Price Waterhouse v. Hopkins, the Justices of the Supreme Court disagreed about whether these particular facts had been properly established, but they agreed that, if they had been, that too would constitute unlawful sex discrimination.

It is thus well-established that the nation's anti-discrimination laws forbid the imposition of sex stereotypes as well as categorical exclusion of people because of sex.

Legally Permissible Sex Distinctions Remain, Despite Anti-Discrimination Laws

But federal and state anti-discrimination laws do not prohibit all sex-role stereotyping. For example, most courts have upheld sex-specific dress codes against sex discrimination claims, at least where the dress codes have not been judged especially onerous for one or the other sex. (For a discussion of the related issue of makeup requirements for female casino bartenders, see a recent column for this site by Sherry Colb.)

Similarly, courts have not generally found that laws prohibiting sex discrimination thereby also prohibit discrimination on the basis of sexual orientation. Yet the latter can readily be described as discrimination on the basis of the refusal of gays and lesbians to conform their romantic interest to a social stereotype in which attraction to the opposite sex is the norm.

Moreover, by contrast with the courts' treatment of race, the courts have tended to accept the possibility of "separate but equal" facilities for men and women in some contexts. For example, in the 1996 case of United States v. Virginia, while the Supreme Court invalidated the Virginia Military Institute's refusal to admit women, the Court also stressed that it would treat single-sex education differently if males and females were truly provided with equal opportunities.

The problem with Virginia's policies, the Court said, was not that they were separate but equal. The problem was that they were separate but unequal. Put another way, in the context of gender, it's possible for separate facilities to be equal and therefore legal. By contrast, the Justices said famously in the 1954 case of Brown v. Board of Education, that with respect to race, "separate educational facilities are inherently unequal."

More directly relevant here, as far as I have been able to ascertain, no court has ever struck down separate men's and women's restrooms as a form of sex discrimination. By contrast, since the 1960s, racially segregated restrooms have been illegal throughout the land.

The Questionable Basis for Permitting Sex Segregation

Why is segregation with respect to sex sometimes permissible, while racial segregation is almost categorically impermissible?

The cases and commentators typically point to the fact that there are real and substantial biological differences between men and women, while differences among the races are at best superficial. Indeed, the very concept of race is itself highly artificial; for example, there is as much genetic variation among black Africans themselves, as there is between most black Africans and white Europeans.

Biological differences between men and women are real enough. Men cannot (given current technology) bear children; women cannot get prostate cancer; and accordingly, laws and policies recognizing such facts should not necessarily be deemed unlawful sex discrimination.

But biological differences are typically not at issue when sex discrimination is charged. Defenders of single-sex education for children and young adults, for example, do not typically claim that biological differences, as such, justify separate schooling. Some of them note that in adolescence especially, the presence of members of the opposite sex may prove distracting; others point to studies showing that girls receive less attention from teachers when boys are present.

These may well be legitimate reasons to separate the sexes for educational purposes; yet it is worth noting that like reasons would not be deemed a sufficient basis for racial segregation.

Suppose it were shown that young children found the presence of children of other races distracting, or suppose studies showed (as some have claimed) that minority students in the presence of white students, like female students in the presence of males, receive less than their fair share of the teacher's attention. The courts would almost certainly say that such findings cannot justify racial segregation in education.

Sex-Segregated Restrooms: Long Assumed to Be Legally Permissible

Whether or not single-sex education can be reconciled with a commitment to equality of the sexes, single-sex restrooms have generally been taken as obviously permissible--a kind of reductio ad absurdum of the argument that sexual segregation is a form of sex discrimination.

And yet it is difficult to make sense of restroom sex segregation as responding to inherent biological differences between the sexes. Men and women can use the same sinks, and while men alone can profitably use urinals, men also do fine without them; rare indeed is the private home--even of the confirmed bachelor--that includes a urinal rather than just a conventional toilet.

In fact, restroom sex segregation responds not to biological differences, but rather to two other concerns: privacy and safety. As a matter of social practice in our culture, people tend to be more embarrassed by the use of toilets in proximity to members of the opposite sex than when only members of their own sex are nearby.

Such inhibitions can be broken down--as they have been in the colleges and universities that have adopted co-ed restrooms in their dormitories--but the inhibitions remain real among many, probably most, people. And because a concern about embarrassment is not obviously sexist, this concern should be seen as a legitimate basis for sex-segregated restrooms.

Moreover, a public restroom is a confined space that criminals can exploit to commit sexual assault or other offenses that disproportionately affect women, and are disproportionately committed by men. A rule that keeps men out of the women's room is a fairly low-cost method of protecting women from the small fraction of men who might exploit mixed-sex restrooms for criminal purposes.

With sex-segregated restrooms, women are less vulnerable because, as soon as they see a man in the women's room, they know they should exit rapidly or call for help. A quick visual scan thus helps a woman ascertain whether the restroom is safe, before she is trapped far from the door, or hidden away in a stall. But a quick visual scan would be useless if restrooms were co-ed.

Accordingly, although inherent biological differences between men and women do not justify sex-segregated restrooms, other legitimate reasons do. Thus, the maintenance of sex-segregated restrooms should not, by itself, be deemed impermissible sex discrimination.

The Impact of the Transgender Ruling

The application of the Human Rights Law's transgender discrimination ban to restrooms threatens the ability of employers, restaurants and others to maintain sex-segregated restrooms.

Why is that? It's true that the vast majority of New Yorkers and visitors to the city do not distinguish between their biological sex and their gender, and thus actual cases of transgendered males entering women's rooms (or vice-versa) will be relatively rare. Yet applying the logic of the settlements, rather than that of the appellate court ruling, could have a large spillover effect.

Under the official guidelines, a person can have a female gender identity even if that person is, to all outward appearances, a man. The crucial factor "is an individual's sense of being either male or female, man or woman, or something other or in-between." As construed by the guidelines, the Human Rights Law prohibits discrimination on the basis of gender identity, as well as on the basis of gender expression. Accordingly, a biological male who identifies internally as a female--but does not express that gender outwardly--has a right to be treated as a woman, and thus to gain access to women's restrooms.

Given the very prejudice transgendered persons face, few New Yorkers would likely claim to be men trapped in women's bodies or vice-versa, simply for the privilege of using the restroom designated for the opposite sex. (It's worth noting, though, that the disparity in the length of the respective queues outside the men's and women's rooms at Broadway theaters makes this more than a completely fanciful possibility. Doubtless, more than one resourceful woman has opted to duck into the men's room in order to avoid missing the second act of a show.)

But the problem is not so much that people will falsely claim to be transgendered. The problem is one of enforcement.

A New York City employer, restaurateur or theater impresario who sees someone who appears to be a man entering the women's restroom may think that this person is probably a mere cheater with a weak bladder, but given the risk of thousands of dollars in liability if he or she proves to be transgendered, the question is not worth asking. Indeed, employers will now instruct their employees not to inquire, for fear of triggering liability.

Hence, men who enter and leave women's rooms may now proceed largely unimpeded--because proprietors will not want their suspicion of criminal activity to be misconstrued as discrimination. The rule contained in the settlement, then, risks giving sex offenders, peeping toms and other miscreants, free passage to the women's room.

More broadly, over time, the men's and women's designations on restrooms may come to be seen by all as mere suggestions. That in itself would not be tragic. Interests in privacy and safety can be furthered without sex-segregated restrooms. The greater risk--if the recent transgender settlements begin to have the broader affect of desegregating the city's restrooms--is that the public will rebel, and demand that the laudable protections for gender identity and expression be removed from the Human Rights Law. But that would be to throw out the baby with the bathroom.


Michael C. Dorf is the Michael I. Sovern Professor of Law at Columbia University in New York City. His book, Constitutional Law Stories, is published by Foundation Press, and tells the stories behind fifteen leading constitutional cases.

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