Bathrooms and discrimination

The use of public bathrooms has become a topic of fierce debate in recent days, in connection with the rights of transgender persons. I want to mention a few of the issues raised in the United States before discussing the situation in Australia. These matters connect with “law and religion” because, as I noted in my recent post on Transgender Issues, many committed to a religious world view will see it as not possible for a person to change the sexual identity they have been given at birth, and will have conscience problems in recognising a gender identity change.

Issues in the US

1. North Carolina

One of the most high profile debates raising these issues in the United States is around the enactment of legislation in the State of North Carolina usually referred to as “HB2” (“House Bill 2” of 2016, presumably), although its formal short title is the Public Facilities Privacy & Security Act (“PFPSA”). The enactment of this legislation has led to high-profile protests from big businesses saying that they will stop doing business in the State, to entertainers cancelling concerts and plays.

The background to the legislation is summed up helpfully in this Public Discourse piece, “North Carolina’s Bathroom Bill and the Constitution” (April 13, 2016):

The controversy began in Charlotte where the city council repealed an existing ordinance that specifically excepted restrooms, showers, and similar facilities from the prohibition on sex discrimination. At the same time, the city council added sexual orientation and gender identity (SOGI) as protected classes under the city’s public accommodations ordinance. Repeal of the restroom exception combined with the new SOGI protections made clear that Charlotte businesses and other places open to the public could no longer separate men and women in such facilities on the basis of sex or gender identity.

These two changes, then, were a radical departure from the previous law, that allowed those who administer bathrooms and changing facilities to exclude males from female facilities, and vice versa. In response the PFPSA restored the longstanding situation that bathrooms would be reserved for those who were biologically of the relevant gender. The legislation, applying to schools and to public facilities, spells this principle out in the amended GS 115C-521.2(b):

Local boards of education shall require every multiple occupancy bathroom or changing facility that is designated for student use to be designated for and used only by students based on their biological sex.

A later provision (new s 143-760(b) makes identical provision for “public agencies”. “Biological sex” is defined as

The physical condition of being male or female, which is stated on a person’s birth certificate. (s 115C-521.2(a)(1), s 143-760(a)(1))

This definition is important, because it recognises that where a person’s birth certificate indicates that they are of a particular sex, that will be the sex recognised by the law. Like many other jurisdictions, North Carolina allows a “post-operative” transgender person to have their birth certificate amended.

The restriction imposed by this law, then, only applies to those who may feel or believe they are of a gender other than that which corresponds to their biological reality, but have not yet gone through the complex processes which require a change of their outward genital and other appearance and general legal status.

It should also be noted that the legislation specifically says that it does not prevent schools or public agencies from setting up “single occupancy” bathrooms which may be designated for use by either sex. It is only “multiple occupancy” facilities which are required to be limited to access by persons of the same biological sex.

There are other aspects to the PFPSA which go beyond the issue of bathrooms. In response to the Charlotte council’s enactment of discrimination laws covering “sexual orientation and gender identity”, the legislature makes it clear that such laws should be uniform over the whole State, and limits the grounds on which discrimination laws can be enacted to “race, religion, colour, national origin, age, biological sex or handicap” (see new s 143-422.2(a).) These grounds are said to be prohibited grounds of discrimination for the purposes of employment or access to “public accommodation”. Unlike Australia, the various jurisdictions of the United States do not have a general prohibition of discrimination on the grounds of sexual orientation or gender identity/transgender status. While debate about whether there should be such general laws continues in the US, it seems worth noting that North Carolina did not have such laws (except in local areas such as Charlotte where councils had acted under local powers). So the action of the State legislature here was aimed at achieving a uniformity of approach across the State.

Still, I do not propose to defend or discuss this aspect of the PFPSA. What I want to note is that the law concerning use of bathrooms represents simply a consensus that has been present across most Western societies since the introduction of shared indoor bathroom facilities: that men and women are different, and where possible reasons of modesty and respect for others are best served by separating the sexes into different public bathrooms and changing areas. The laws that this move over-ruled proposed to allow open access to bathrooms to persons whose outward physical characteristics were the opposite to those who usually used the bathroom.

Indeed, recognition that modesty may call for differential treatment in “discrimination” laws is still embedded in Australian sex discrimination legislation. Under the Sex Discrimination Act 1984, there is a general principle that men and women should have access to public facilities (meeting rooms, etc) on an equal basis. But s 30 of the Act created some exceptions to these rules, and among those exceptions are the following:

Certain discrimination on ground of sex not unlawful

            30 (1)  Nothing in paragraph 14(1)(a) or (b), 15(1)(a) or (b) or 16(b) renders it unlawful for a person to discriminate against another person, on the ground of the other person’s sex, in connection with a position as an employee, commission agent or contract worker, being a position in relation to which it is a genuine occupational qualification to be a person of a different sex from the sex of the other person.

             (2)  Without limiting the generality of subsection (1), it is a genuine occupational qualification, in relation to a particular position, to be a person of a particular sex (in this subsection referred to as the relevant sex ) if:…

                  (c)  the duties of the position need to be performed by a person of the relevant sex to preserve decency or privacy because they involve the fitting of clothing for persons of that sex;

                     (d)  the duties of the position include the conduct of searches of the clothing or bodies of persons of the relevant sex;

                     (e)  the occupant of the position is required to enter a lavatory ordinarily used by persons of the relevant sex while the lavatory is in use by persons of that sex;…

                  (g)  the occupant of the position is required to enter areas ordinarily used only by persons of the relevant sex while those persons are in a state of undress

It is clearly recognised that in relation to “sex discrimination” (that is, differentiating between men and women), it may be a “genuine occupational qualification” to be of one sex or the other because access to bathrooms or changing areas is required. There is a genuine difference between men and women, and that difference manifests itself in a desire for modesty and not exposing one’s body to members of the opposite sex.

This would have all been reasonably straightforward and the subject of general agreement until very recently. However, there are now cases emerging which suggest that drawing the perfectly rational distinction between the bodies of men and the bodies of women is somehow “discriminatory”. The next case to be mentioned is such a case.

2. G G v Gloucester County School Board

In this decision of the United States Court of Appeal for the Fourth Circuit, handed down on April 19, 2016, a transgender boy, GG, born female, sought an injunction to require the local School Board to allow him to use the male rest rooms. GG dressed as a boy and had started “transitioning” to male, but had not had “sex reassignment surgery” (see p 7 of the transcript). Having been initially allowed to use a rest room in the school’s clinic area, he then started using the boy’s rest room, until the Board, following complaints from students and parents, ruled that students should only use the rest rooms corresponding with their biological sex. They did, however, provide three “unisex” stalls that could be used by GG or any other student of either sex. But GG complained that he felt “stigmatised” by being expected to use these separate stalls.

The legal basis for the injunction was said to be Title IX of the Federal Education Amendments Act of 1972 (there was a claim also filed under the “Equal Protection Clause” of the Constitution, but the court did not reach that issue.) Title IX provides relevantly that:

[n]o person… shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.

The question was: was exclusion of a transgender person from a male bathroom, on the basis that he was biologically female, differential treatment “on the basis of sex”? The Act itself allowed separate living facilities for “the different sexes” (20 USC 1686) and regulations made under the Act permitted “separate toilet, locker room, and shower facilities on the basis of sex” (34 CFR 106.33). Since the School was allowing all persons who were biologically male to use the boy’s rest rooms, it seems that it was not discriminating “on the basis of sex”.

The majority of the Court (Floyd CJ and Davis SCJ) disagreed. Their primary reason for doing so was that the Federal Department of Education had provided its own interpretation of the law, and said in a letter of Jan 7, 2015, that:

“When a school elects to separate or treat students differently on the basis of sex… a school generally must treat transgender students consistent with their gender identity”.

To an Australian lawyer this part of the decision is particularly hard to accept. In our legal system the Department administering a law has no preferred standing as an interpreter of that law. It is the job of a court to interpret what the law says in accordance with well-established canons of statutory interpretation. But in the US the decision of the US Supreme Court in Auer v Robbins, 519 US 452 (1997), establishes that courts should usually “defer” to the interpretation of legislation provided by the agency responsible for its implementation, “unless the interpretation is plainly erroneous or inconsistent with the regulation or statute”.

So there is something of a presumption in the US that the bureaucracy administering a scheme knows best how to interpret the legislation setting up the scheme. But of course this still leaves some room for a court to rule that the Department has it wrong. Here the majority of the court upheld the Department’s interpretation, ruling that the law was “ambiguous” as to how the sex of students who claimed to be transgender should be treated- see p 20. So they deferred to the Department’s interpretation as a “reasonable” reading of the law- see p 21.

I have to say I find the dissenting judgment of Niemeyer CJ much more convincing. His Honour concludes that the Act and the Regulations use the word “sex” to refer to biological sex when allowing rules to discriminate between bathrooms and locker rooms on the basis of sex. There is no ambiguity which requires resolution by the Department. He also notes that GG’s argument, if accepted, would not only affect rest-rooms (toilets) but would have to be extended to other facilities the law allows to be sex-segregated, including living facilities, locker rooms and shower facilities- at p 56.

In the end, as Niemeyer CJ notes, the courts have in the past recognised “privacy rights” which arise in situations of nudity or partial nudity, and the policy supported by the Department would undermine the rights of students not to be exposed to the gaze of students of a different biological sex, or expose themselves to such persons (see the cases cited at pp 57-59).

There seems little doubt that the decision will be appealed, as it represents the first time a court (as opposed to an administrative body) has tried to mandate that students asserting they are transgender must be allowed to use bathrooms normally set aside on the basis of biological sex. It is particularly disturbing to see the majority’s use of “scare quotes” in the following passage near the beginning of their decision, at p 6:

GG’s birth-assigned sex, or so-called “biological sex”, is female, but GG’s gender identity is male.

The language really needs to be challenged. No person “assigned” GG a sex identity at birth; the very cells of GG’s body proclaimed what this was, presumably along with GG’s genitalia. And to refer to “so-called” biological sex seems like the worst sort of triumph of ideology over scientifically measurable reality.

The Australian situation

So far there seem to have been no court decisions on this issue in Australia. So the scenario sketched out here is hypothetical. But it seems to be worth considering whether a claim of unlawful discrimination could be made by a school student who claimed, without surgical intervention, to be of a “gender identity” opposite to that of their biological identity, but who was not allowed to use the bathroom corresponding to their assumed gender identity.

At the Commonwealth level, s 5B of the Sex Discrimination Act 1984 (“SDA”) prohibits discrimination on the basis of “gender identity”:

Discrimination on the ground of gender identity

             (1)  For the purposes of this Act, a person (the discriminator ) discriminates against another person (the aggrieved person ) on the ground of the aggrieved person’s gender identity if, by reason of:

                     (a)  the aggrieved person’s gender identity; or

                     (b)  a characteristic that appertains generally to persons who have the same gender identity as the aggrieved person; or

                     (c)  a characteristic that is generally imputed to persons who have the same gender identity as the aggrieved person;

the discriminator treats the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person who has a different gender identity.

“Gender identity” is defined in s 4(1) of the Act as

the gender-related identity, appearance or mannerisms or other gender-related characteristics of a person (whether by way of medical intervention or not), with or without regard to the person’s designated sex at birth.

One of the areas where gender identity discrimination is unlawful is access to facilities: see s 22 (extracted below on the relevant points).

Goods, services and facilities

             (1)  It is unlawful for a person who.. makes facilities available, to discriminate against another person on the ground of the other person’s … gender identity:

                     (a)  by refusing… to make those facilities available to the other person;

                     (b)  in the terms or conditions on which the first-mentioned person… makes those facilities available to the other person; or

                     (c)  in the manner in which the first-mentioned person… makes those facilities available to the other person.

If School S denied transgender student T, who identified as male, access to male toilets, presumably the argument would be made along the following lines:

  1. Being not allowed to use the male toilets is “less favourable” treatment;
  2. In the circumstances (which are said not to be “materially” different) B, a biological male who identifies as male, would be allowed to use the male toilets;
  3. B has a “different gender identity” to T;
  4. It is on the “ground of” T’s gender identity that this decision has been made;
  5. This under s 22 would be a detail of “facilities.”

Interestingly, however, almost every one of the steps in this argument seem open to challenge (apart from step 5, which seems applicable).

  1. Is it really “less favourable” treatment to not be allowed to use the male toilets? In general terms where toilets of an equivalent standard are supplied, it might not be. But presumably it would be argued that the way to describe the treatment is “being allowed to use a bathroom that correspond to one’s apparent sex”, and the benefit being denied here is represented by the probability of being made fun of by other students for seeming to use the wrong bathroom.
  2. An important issue here is whether or not the circumstances are “materially different” when considering the question of discrimination. S may argue that there is a key material difference here: the physical genitalia and other sexual identity markers of T are not those of B, and these are “material” to the question of access to a shared bathroom.
  3. Is it indeed the case that B has a different “gender identity” to T? After all, both of them seem to present as male. However, the argument may be made that a “gender related characteristic” of T is the lack of male genitalia.
  4. Has the decision to exclude been made on the basis of T’s gender identity? It could be argued that it has been made on the basis of T’s biological sex, not T’s male gender identity. Here is difficult to know what to make of the phrase at the end of the definition of “gender identity”: “with or without regard to the person’s designated sex at birth”. Is one allowed to have regard to T’s biological sex (the apparent intended meaning of the inaccurate word “designated”)? Or not?

It seems there will be much work needed to sort out these complexities. It may not be irrelevant, however, that as noted above s 30 of the SDA allows recognition of the general public policy which allows segregated bathrooms on the basis of sex. Perhaps the interpretation of the transgender discrimination provisions in s 5B ought to take this into account. Of course it ought to be wrong for a transgender person to be denied a job in the general marketplace, or access to public facilities like a shopping centre or a university, on the basis of that characteristic. That is because on the whole the question of whether a person believes that their gender identity is not the same as their biological identity is irrelevant to those situations. But it seems to be highly relevant, where bathrooms and change rooms are involved, what a person’s biological identity is. And so arguably s 5B ought not to be satisfied in these cases.

If, contrary to the above view, there is a prima facie case for breach of s 5B, would there be any applicable defences? The defences under s 30 noted above apply only to the question of  discrimination on the basis of “sex”, not “gender identity”. However, there is a broader defence provision which may be applicable: s 32.

Services for members of one sex

                   Nothing in Division 1 or 2 applies to or in relation to the provision of services the nature of which is such that they can only be provided to members of one sex.

S may well argue that the nature of the “service” of providing a bathroom is such that they must be segregated on biological sex lines. The proposition that “men’s toilets” are only available to men would not seem to be very controversial. However, this argument may possibly not succeed- “services” are not quite the same as “facilities”, and there is no specific exemption of this sort for “facilities” as such.

There is also an exemption in relation to matters dealt with by other legislation, under s 40:

 (2B)  Nothing in Division 1 or 2, as applying by reference to section 5A, 5B or 5C, affects anything done by a person in direct compliance with a law of the Commonwealth, or of a State or Territory, that is prescribed by the regulations for the purpose of this subsection.

I am, to be frank, not sure whether access to male and female bathrooms is governed by laws or simply has been regarded as a matter of custom. If, however, there is a law that deals with the matter, then s 5B may not over-ride it.

This exemption only applies to “prescribed” laws. At the moment such provision is made, for State and Territory laws, by reg 5 of the Sex Discrimination Regulations 1984:

Exemption for things done in direct compliance with prescribed laws

             (1)  For subsection 40(2B) of the Act, all laws of the States and the Territories, as in force on 1 August 2013, are prescribed…

             (2)  This regulation ceases to have effect at the end of 31 July 2016 as if it had been repealed by another regulation.

If a State law currently over-rides s 5B, then it will cease to do so on 31 July 2016. After that point the debates noted above over the extent and meaning of s 5B will have to be resolved.

Conclusion

The question whether a person who identifies as transgender, but has not yet made a “surgical” transition, ought to be allowed to use bathrooms of their preferred gender, is under debate around the Western world. While there are general laws prohibiting discrimination which may provide an answer, they are not always clear. Arguably these are the sort of issues where Parliaments ought to provide clear guidance, rather than leaving it up to the courts to have to wrestle with legislation that may have not been designed for this purpose.

Politically and in the realms of public debate, it ought to be more clearly recognised than it is, that opposition to changes allowing “bathroom access” in the preferred gender is not simply based on irrational hatred or “transphobia”. There are genuinely difficult issues to be resolved. Who gets to decide whether someone has sufficiently indicated an intention to live as the opposite sex to be so regarded for bathroom purposes? It would seem to be ludicrous to accept this on the mere unsupported word of a person, with no outward or historical evidence that this is indeed a long term desire rather than a passing fantasy. There may be good reasons to distinguish between different types of rooms, to treat toilets with separate stalls differently to change rooms or shower rooms. The rights to privacy of persons using the bathrooms corresponding to their biological sex cannot simply be ignored by allegation of a new “right to feel comfortable about gender identity”.

In this connection it is interesting to note the decision of the Victorian Civil and Administrative Tribunal in Hanover Welfare Services Ltd (Anti Discrimination Exemption) [2007] VCAT 640 (20 April 2007). There a women’s shelter received a general exemption under the relevant Victorian legislation allowing them not to accept male-to-female transgender persons as “women” for the purposes of providing shelter. DP McKenzie, in issuing the exemption, noted:

9 The incident which led to this exemption application was an incident where a male who identified as a male-female transsexual was accommodated in a women’s only accommodation service. The person behaved inappropriately and walked naked within the accommodation facility displaying male genitalia. The women accommodated in the facility felt great trauma and distress and because of this, resulting from their past experiences and fear.

(See, for a critique of this decision, this article.)

Finally, the debate on these questions cannot avoid raising serious issues as to whether supporting a person’s desire to appear as a member of the opposite sex is always a wise idea, especially when the person is a minor, whose feelings and desires may change rapidly during adolescence. All these matters are the subject of serious debate which ought to be conducted in a respectful way, not demonising or insulting either side.

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