Bradley Roberts is a police officer in Clark County, Nevada. He has worked for the Clark County School District for 20 years. He is also a transgender man.
Officials at the Clark County School District told Roberts, who was working for the District as a resource officer that since he was born female but identifies as male, he could not use either the men's or women's bathrooms at work, but would be required to use a gender neutral bathroom.
When Bradley Roberts first told the District in 2011 that he was presenting as a male, he was told that he could not use the men’s room until he submitted proof of gender reassignment surgery. But he wasn’t allowed to use the women’s restroom, either, because he was presenting as a male.
Gender-neutral bathrooms weren’t always available where Roberts worked, so he was forced to use facilities outside the workplace or delay going.
--Peter Renn, Lambda Legal
On October 4, Judge Jennifer A. Dorsey of the US District Court for the District of Nevada ruled that the District had therefore engaged in unlawful sex discrimination in violation of Title VII.
The Equal Employment Opportunity Commission interprets Title VII of the 1964 Civil Rights Act to give transgender employees the right to use the bathroom that is consistent with their gender identity, but this is the first court decision to say so, the Lambda Legal Defense and Education Fund said. The LGBT rights advocacy group filed a brief supporting Roberts.
It’s a “really significant victory” for transgender people because the court recognized that Title VII reaches bathroom access.
There’s “no restroom exception” to Title VII.
The Nevada decision illustrates the “confusion and turmoil” in the lower federal courts about how to handle Title VII sex discrimination claims involving transgender workers.
The court engaged in kind of a suspect analysis in finding that Roberts experienced “adverse employment action,” which generally is defined as decisions affecting pay, benefits and employment status.
--J. Randall Coffey, representing the District
SCOTUS precedent on the issue currently resides in Price Waterhouse v Hopkins, which provides that Title VII protects people from all forms of sex stereotyping.
Congress intended to forbid employers from taking “gender” into account in making employment decisions or to discriminate against a man or woman because he or she fails to conform with sexual stereotypes, the court said.
Although federal appeals courts are split on the issue, Dorsey said Title VII’s ban on sex discrimination covers bias based on both biological sex and gender. Gender is a broader category that includes societal stereotypes about how women and men should talk, dress and act.
The district said it banned Roberts from the men’s bathroom because he is biologically female.
That’s discrimination based on gender and sex stereotyping.
The district argued that it discriminated against Roberts “based on his genitalia,” rather than his transgender status.
That's a distinction without a difference. Roberts was clearly treated differently than persons of both his biological sex and the gender he identifies with—in sum, because of his transgender status.
Imagine if the government told any other male employee that his private parts didn’t measure up to its standards, and he needed to get surgery to be treated like a 'real' man. Or if a boss told a female employee that her breasts were too small, and she needed to get surgery to be treated like a 'real' woman.
The decision from a federal district court in Nevada follows decisions from the U.S. Courts of Appeal for the Fourth, Sixth, and Ninth circuits. It’s also consistent with the position taken by the Equal Employment Opportunity Commission and the Occupational Safety and Health Administration, both of which say that transgender individuals should be allowed to use the restroom for the gender with which they identify and may not be restricted to gender-neutral restrooms (unless “gender-neutral” is all that the employer has).
According to the court’s decision, the School District had a chance to mediate this charge when it was before the Nevada Equal Rights Commission, but declined to do it. In hindsight, that was probably an unfortunate choice. But the court referred the case for a mandatory settlement conference, so maybe they’ll be able to work things out.