Bathroom Ban on Transgender Male Police Officer Violates Title VII

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By Kevin McGowan

Oct. 6 — The LGBT rights movement picked up some muscle when a Nevada school district was forbidden to ban a transgender male police officer from using the men’s bathroom at work ( Roberts v. Clark Cnty. Sch. Dist. , 2016 BL 333457, D. Nev., No. 15-388, 10/4/16 ).

The Clark County School District engaged in unlawful sex discrimination when it said Bradley Roberts, a police officer who was born female but identifies as male, couldn’t use either the men’s or the women’s bathroom at work, Judge Jennifer A. Dorsey of the U.S. District Court for the District of Nevada said Oct. 4.

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, said Peter Renn, a Lambda Legal attorney in Los Angeles who wrote the amicus brief for Roberts.

An attorney representing the school district declined to comment.

No Title VII ‘Restroom Exception.'

There’s “no restroom exception” to Title VII, Renn told Bloomberg BNA Oct. 6.

Gender-neutral bathrooms weren’t always available where Roberts worked, so he was forced to use facilities outside the workplace or delay going, Renn said.

The decision is “a sign of the momentum building” for the legal rights of transgender people in the workplace and elsewhere, he said.

Most pending litigation involves transgender students alleging sex discrimination under Title IX of the 1972 Education Amendments. A Virginia school district has asked the U.S. Supreme Court to review a federal appeals court decision saying a transgender male student may have to be allowed to use the boys’ restroom at school.

The school cases involve how much courts should defer to the Department of Education’s interpretation of Title IX sex discrimination protections, Renn said. But transgender workers and their lawyers are watching those cases closely for their potential impact in the workplace.

Turmoil in the Courts

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, said J. Randall Coffey, a partner with Fisher & Phillips in Kansas City, Mo., who represents employers.

The school district required Roberts to use a gender-neutral bathroom, which some other courts have found to be a nondiscriminatory solution, Coffey told Bloomberg BNA Oct. 6.

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, Coffey said.

Title VII Covers Gender

U.S. Supreme Court precedent provides that Title VII’s sex discrimination ban protects people from “all forms of sex stereotyping,” the district court said.

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 court said.

The district argued that it discriminated against Roberts “based on his genitalia,” rather than his transgender status. That’s a “distinction without a difference,” Dorsey wrote.

“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,” the court said.

Maier Gutierrez Ayon, the England Law Office and McLetchie Shell LLC represented Roberts. Littler Mendelson represented the Clark County School District.

To contact the reporter on this story: Kevin McGowan in Washington at

To contact the editor responsible for this story: Peggy Aulino at

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