The Ninth Circuit Court of Appeals affirmed a lower court's ruling that dismissed plaintiff Rebecca Kastl's lawsuit against Maricopa County Community College. Kastl, who is transsexual, was a MCCC student and instructor, and sued the college in 2002 after it banned her from using the women's restroom and subsequently decided not to renew her contract. Kastl argued that these decisions constituted unlawful sex discrimination under the Equal Protection Clause, Title VII, and Title IX, but the lower court dismissed her suit. In affirming that decision, the Ninth Circuit acknowledged that it recognizes that, under the Price Waterhouse doctrine, discrimination against a transgender plaintiff for failing to conform to gender stereotypes is a form of sex discrimination prohibited by law. However, the court determined that the college did not ban Kastl from the women's restroom for discriminatory reasons, but rather, for permissible "safety concerns." Since Kastl did not allege that those safety concerns were actually pretext for a discriminatory motive, she did not make out a sufficient case for sex discrimination, the court reasoned.
Unfortunately, it appears that the district court's decision, and as a result, the parties' briefs on appeal, focused on the first question -- whether and under what theory Kastl is protected under antidiscrimination law at all, and not the "safety concern" alternative rationale offered by the college. I could not find where or whether the courts examined or the parties briefed the safety issue, which did not receive more than a sentence in the appellate court's opinion. It certainly seems arguable (if not obvious) that safety is a pretext for the college's discomfort with the plaintiff's transsexuality, especially if there is no evidence that the plaintiff's presence in the women's bathroom actually did threaten the safety of other women who were there. As a result, I am disappointed that the court didn't explain this aspect of the decision more fully. The decision reads as if the court -- like Maricopa County Community College, perhaps? -- is trying to avoid having to engage in any meaningful analysis over the hard and uncomfortable questions raised by the case.
Decision: Kastl v. Maricopa County Community College District, 2009 WL 990760 (9th Cir. Apr. 14, 2009).
Showing posts with label bathrooms. Show all posts
Showing posts with label bathrooms. Show all posts
Thursday, April 16, 2009
Saturday, December 20, 2008
Transgender Student's Discrimination Case Under Investigation
The Pennsylvania Human Relations Commission is investigating a discrimination complaint against Harrisburg Area Community College that was filed by a former student, Jamie Nicole Anderson. According to this article about case, Anderson is a 42-year-old ex-Marine who had a 3.8 GPA at HACC, where she was pursuing an x-ray technician degree. In May she underwent "a sex change operation" and "that's when the trouble started."* She was harassed by clinical instructors who referred to her by male pronouns -- in contrast to her patients, who always called her ma'am. Despite her efforts to seek support and assistance from program directors and the instructors' supervisors, she claims, HACC's response was half-hearted and consequently, ineffective. In October, HACC suspended her for using the women's restroom. Later that month, she was expelled for violating the dress code policy that forbids students from wearing more than one earring in an ear. It seems unlikely to me that all students who accidentally wear an extra earring are expelled, so I am guessing PHRC will examine whether Anderson was singled out for an unusually harsh punishment for discriminatory reasons.
PHRC enforces the Pennsylvania Fair Educational Opportunties Act, which prohibits schools from discriminating against students on the basis of "race, religion, color, ancestry, national origin or sex." It is unclear from PHRC's published materials and decisions whether it considers sex discrimination to include discrimination on the basis of gender identity. Perhaps the results of this case will be informative on that issue.
* I'm direct quoting the article here because it seems unlikely to me that discrimination against Anderson "started" when she had sex reassignment surgery. Anderson must have been taking female hormones and living full time as a woman prior to that time. Surely these outward gender markers would have made her a target for discrimination more so than the status of her anatomy.
PHRC enforces the Pennsylvania Fair Educational Opportunties Act, which prohibits schools from discriminating against students on the basis of "race, religion, color, ancestry, national origin or sex." It is unclear from PHRC's published materials and decisions whether it considers sex discrimination to include discrimination on the basis of gender identity. Perhaps the results of this case will be informative on that issue.
* I'm direct quoting the article here because it seems unlikely to me that discrimination against Anderson "started" when she had sex reassignment surgery. Anderson must have been taking female hormones and living full time as a woman prior to that time. Surely these outward gender markers would have made her a target for discrimination more so than the status of her anatomy.
Thursday, October 9, 2008
Court Dismisses Trangender Plaintiff's Bathroom Complaint
A federal court in Nevada recently dismissed a Title IX case brought by the parents of a preoperative male-to-female transgender student (referred to in the decision as "Mary Doe") that challenged the school's decision that would have prohibited her from using the girls' restroom. Apparently (the decision does not provide a detailed factual account of what happened) the plaintiffs considered enrolling their daughter at Green Valley High School near Las Vegas, Nevada, but chose not to after the principal informed them that Mary would not be allowed to use the girls' restroom. Instead, the private bathroom in the nurse's office would be available instead.
The court found numerous weaknesses in the plaintiffs' case. First, it said that because the plaintiffs' did not enroll their daughter in GVHS, no discrimination or injury actually occurred. Second, it concluded that plaintiffs could not bring an Equal Protection claim against the school district because Title IX provides the exclusive remedy for such claims (similar to another decision we blogged about recently). Third, with respect to the plaintiff's Title IX claim, the court expressed doubt that Title IX covers bathrooms because the statute's scope is limited to educational programs. And fourth, even if Title IX does apply to bathrooms, the court determined that discrimination did not occur because a bathroom (in the nurse's room) would have been available to Mary Doe had she enrolled.
I have a big problem with the court's suggestion that Title IX does not apply to school restrooms. Clearly bathrooms on school grounds are part of an educational program. The court cites a Ninth Circuit case suggesting that it's appropriate for courts to make an "actual determination as to whether the relevant portions of a recipient's program is educational in nature." But that was a case about Title IX's application to a prison system's vocational education program. The court there was suggesting, appropriately, that Title IX, an education statute, doesn't govern the entire prison -- just the vocational educational program. To suggest that school bathrooms aren't covered by Title IX because there's not "education" going on in there misses the point of the distinction that the Ninth Circuit was making. It is also ridiculously dismissive of common sense. If a school (or, say, a college engineering building) had no female bathrooms, it would clearly be understood as an indirect exclusion of women from the educational program being conducted in that building, because people need bathroom access so that they can physically be where the education is going on.
Moreover, in determining that the school district did not discriminate against Mary Doe because it made another bathroom available to her, the court fails to consider the possibility that discrimination against transgender individuals is per se discrimination on the basis of sex, and thus prohibited under Title IX. Under such a theory, one could view the exclusion of the plaintiffs' daughter from the girls' bathroom as failure to treat her similarly to all other girls for the sole reason that unlike all the girls, she was born into a male body. As for the nurse's room alternative, the court does not address, nor seem to understand, that this is socially isolating and an affront to Mary Doe's dignity, which as a result is potentially tantamount to an outright exclusion from school.
Most likely the court, and the principal at GVHS, were concerned about the potential that Mary's presence in the girls' bathroom would be disruptive due to her male anatomy. But to the extent this concern is motivated by assumptions, stereotypes, and fear, it is not a valid concern. If the student in question has good behavior generally, why should the school assume that she will be aggressive or harassing or disrespectful in the bathroom? Even if the principal's concern was that the girls will be uncomfortable by the mere presence, however innocent, of a girl with male anatomy (which, I might add, would not be visible to anyone outside whichever individual bathroom stall Mary Doe elects to use), it does not seem that the principal even considered whether these concerns could be mitigated with education about tolerance and acceptance of those who are different before validating them with preemptive exclusion.
Decision is: Doe v. Clark County Sch. Dist., 2008 WL 4372872 (D. Nev. Sept. 17, 2008).
The court found numerous weaknesses in the plaintiffs' case. First, it said that because the plaintiffs' did not enroll their daughter in GVHS, no discrimination or injury actually occurred. Second, it concluded that plaintiffs could not bring an Equal Protection claim against the school district because Title IX provides the exclusive remedy for such claims (similar to another decision we blogged about recently). Third, with respect to the plaintiff's Title IX claim, the court expressed doubt that Title IX covers bathrooms because the statute's scope is limited to educational programs. And fourth, even if Title IX does apply to bathrooms, the court determined that discrimination did not occur because a bathroom (in the nurse's room) would have been available to Mary Doe had she enrolled.
I have a big problem with the court's suggestion that Title IX does not apply to school restrooms. Clearly bathrooms on school grounds are part of an educational program. The court cites a Ninth Circuit case suggesting that it's appropriate for courts to make an "actual determination as to whether the relevant portions of a recipient's program is educational in nature." But that was a case about Title IX's application to a prison system's vocational education program. The court there was suggesting, appropriately, that Title IX, an education statute, doesn't govern the entire prison -- just the vocational educational program. To suggest that school bathrooms aren't covered by Title IX because there's not "education" going on in there misses the point of the distinction that the Ninth Circuit was making. It is also ridiculously dismissive of common sense. If a school (or, say, a college engineering building) had no female bathrooms, it would clearly be understood as an indirect exclusion of women from the educational program being conducted in that building, because people need bathroom access so that they can physically be where the education is going on.
Moreover, in determining that the school district did not discriminate against Mary Doe because it made another bathroom available to her, the court fails to consider the possibility that discrimination against transgender individuals is per se discrimination on the basis of sex, and thus prohibited under Title IX. Under such a theory, one could view the exclusion of the plaintiffs' daughter from the girls' bathroom as failure to treat her similarly to all other girls for the sole reason that unlike all the girls, she was born into a male body. As for the nurse's room alternative, the court does not address, nor seem to understand, that this is socially isolating and an affront to Mary Doe's dignity, which as a result is potentially tantamount to an outright exclusion from school.
Most likely the court, and the principal at GVHS, were concerned about the potential that Mary's presence in the girls' bathroom would be disruptive due to her male anatomy. But to the extent this concern is motivated by assumptions, stereotypes, and fear, it is not a valid concern. If the student in question has good behavior generally, why should the school assume that she will be aggressive or harassing or disrespectful in the bathroom? Even if the principal's concern was that the girls will be uncomfortable by the mere presence, however innocent, of a girl with male anatomy (which, I might add, would not be visible to anyone outside whichever individual bathroom stall Mary Doe elects to use), it does not seem that the principal even considered whether these concerns could be mitigated with education about tolerance and acceptance of those who are different before validating them with preemptive exclusion.
Decision is: Doe v. Clark County Sch. Dist., 2008 WL 4372872 (D. Nev. Sept. 17, 2008).
Subscribe to:
Posts (Atom)
