Panel Held on Transgender Litigation
Following the Supreme Court’s historic grant of certiorari in Gloucester County School Board v. G.G., a case concerning transgender bathroom use, the Solomon Center for Health Law and Policy, the Yale Health Law and Policy Society, OutLaws, the Yale Federalist Society, and the Yale American Constitution Society hosted a panel discussion on transgender litigation and administrative law. Moderator Professor Doug NeJaime (Yale Law School, UCLA, and Williams Institute), Professor James Blumstein (Vanderbilt), David Dinielli (Southern Poverty Law Center), and Hillary Schneller (Center for Reproductive Rights) discussed the health and administrative law dimensions of cases litigating transgender rights across the United States.
The 1.4 million individuals who identify as transgender in the United States are particularly vulnerable to discrimination in employment and with the government, Professor NeJaime reported. Gloucester County, concerning a transboy prevented from using the bathroom at his Virginia high school, presents questions of bathroom access that have become the main framework for transgender rights litigation. Specifically, the case asks whether courts should extend deference to an unpublished agency letter, and whether courts should give effect to the Department of Education’s (DOE) specific interpretation of Title IX to treat transgender students consistent with their gender identity.
Professor Blumstein contrasted Title IX, for sex discrimination, from Title VI, for race discrimination, in that Title IX provides for and explicitly contemplates segregation by sex. For athletics, in particular, Title IX segregates by sex to protect women’s sports against competition from men. Professor Blumstein expressed concern that a regime based on self-determination of gender identity, and no procedure for challenging this self-determination, would undermine and threaten the important values, including rights to privacy and modesty, that Title IX’s sex segregation regime protects and promotes.
David Dinielli responded to Professor Blumstein’s comments first by asking why we have sex-segregated spaces at all. On the issue of privacy rights, Dinielli maintained that there is an underlying assumption that the sight of transgender bodies in bathrooms or locker rooms might violate some expectations of privacy. But, Dinielli argued, all expectations of privacy go back to what is reasonable, and with the increasing recognition that transgender people do in fact exist, it would be unreasonable to expect that transgender individuals would not share facilities cisgender individuals use. Further, policing gender and the use of sex-segregated places would necessarily out transgender individuals—many of whom may not be otherwise be—implicating the privacy concerns of transgender individuals.
Finally, Hillary Schneller weighed in to discuss transgender rights litigation outside the context of sex-segregated spaces. Schneller shared her work litigating transgender rights in health care and Section 1557, the nondiscrimination provision of the Affordable Care Act (ACA). Although Section 1557 itself provides no religious exemptions, challenges brought by groups such as the Beckett Fund in Franciscan Alliance v. Burwell claim that Section 1557 incorporates everything from Title IX, including its religious exemptions.
