Why it matters
In a victory for the transgender rights movement, a Nevada federal court ruled that a prohibition on a transgender police officer preventing the use of either the men’s or women’s bathrooms violated both state law and Title VII, granting partial summary judgment in the officer’s favor. Hired while presenting as a female, the officer held the position for 17 years until 2011, when he began identifying as a man in dressing and grooming. He also began using the men’s restrooms at work. When coworkers complained, the officer was instructed to use only gender-neutral restrooms. Despite his request to use the men’s bathroom and explanation that he was transitioning—changing his name, conforming to the men’s grooming code, and asking to be addressed using male pronouns—his employer refused. The officer filed suit under Title VII and Nevada’s anti-discrimination law. Ruling on cross motions for summary judgment, the court sided with the plaintiff. Title VII includes discrimination based on a person’s gender, the court said, and the employer’s bathroom ban was “precisely” the type of sex stereotyping the Ninth Circuit Court of Appeals has found the statute prohibits.
In 1992, the Clark County School District (CCSD) hired a campus monitor named Brandilyn Netz, who later graduated from a law enforcement academy and was then hired as a police officer by the school district. She held the position for 17 years without incident.
Beginning in 2011, Netz began dressing for work like a man, grooming like a man, and identifying himself as a man. He also started using the men’s bathrooms at work. When others complained, Netz was called into a meeting with commanding officers. At the meeting, Netz announced that he was transgender and in the process of transitioning into a man. Going forward, he told them he wanted to be known as Bradley Roberts and use the men’s bathroom.
The commanding officers instructed him not to use either the men’s or the women’s restrooms and should confine himself to gender-neutral restrooms. Roberts sent a letter with a formal request, which resulted in a second meeting and an official ban on both the men’s and women’s restrooms as well as a denial of his request to be treated as a male until he provided official documentation of a name and sex change.
A few days later, the commanding officers e-mailed the entire department about Roberts’ transition, which he said opened him up to comments from coworkers. Roberts also legally changed his name and requested that his employer update his records. It failed to do so.
Roberts filed a charge with the Nevada Equal Rights Commission (NERC) alleging gender identity discrimination and harassment. Only after NERC scheduled a public hearing did the employer issue a new bathroom policy, but the school district still did not update Roberts’ records. He then filed suit under both Nevada’s Anti-Discrimination Statute and Title VII, alleging gender discrimination and harassment as well as retaliation.
Ruling on cross motions for summary judgment, U.S. District Court Judge Jennifer A. Dorsey denied both parties’ motions with respect to the harassment and retaliation claims, finding material issues of fact remained. She did grant summary judgment in favor of Roberts on his discrimination claims, however.
The school district argued that Title VII prevents discrimination only “because of … sex” and does not prohibit gender discrimination. Roberts was treated like any other female who tried to use the men’s bathroom, the employer told the court, and therefore was not subject to the protections of the statute.
But the court disagreed.
The jurisprudential understanding of Title VII’s prohibition against discrimination based on sex has “evolved considerably” since the statute’s enactment in 1964, Judge Dorsey explained. In 1989, the U.S. Supreme Court broadened the notion of discrimination “because of sex” in Price Waterhouse v. Hopkins, establishing that Title VII protects people from all forms of “sex stereotyping,” and that “gender must be irrelevant to employment decisions.”
While some circuits have interpreted Price Waterhouse to find no protections for transgender employees, the Ninth Circuit Court of Appeals has taken a different approach, determining in Schwenk v. Hartford that “‘sex’ under Title VII encompasses both sex—that is, biological differences between men and women—and gender.” Discrimination because one fails to act in the way expected of a man or a woman is forbidden under Title VII, the Ninth Circuit held.
Applying this principle in an unpublished opinion a few years later, the Ninth Circuit ruled that a transgender female who sued her employer over a ban on use of the women’s bathroom stated a prima facie case of gender discrimination in Kastle v. Maricopa County Community College. Similar decisions have followed from the Fourth, Sixth, and Eleventh Circuits, as well as the Equal Employment Opportunity Commission.
With this background, Judge Dorsey had little problem granting summary judgment to Roberts on his discrimination claim.
“Direct evidence establishes the department’s discriminatory intent here,” she wrote. “It banned Roberts from the women’s bathroom because he no longer behaved like a woman. This alone shows that the school district discriminated against Roberts based on his gender and sex stereotypes. And the department also admits that it banned Roberts from the men’s bathroom because he is biologically female. Although CCSD contends that it discriminated against Roberts based on his genitalia, not his status as a transgender person, this is a distinction without a difference here. Roberts was clearly treated differently than persons of both his biological sex and the gender he identifies as—in sum, because of his transgender status.”
The bathroom ban was an adverse employment action, as equal access to restrooms is a significant, basic condition of employment, the court said, and the school district treated Roberts differently than similarly situated employees. Even though other females were not permitted to enter the men’s restroom, they were allowed to use the female bathroom, while Roberts was not, Judge Dorsey noted.
As the school district failed to articulate a legitimate, nondiscriminatory reason for the bathroom ban, the court granted summary judgment to Roberts on his discrimination claim. Because genuine disputes remained with regard to the claims of harassment and retaliation, as well as damages for Roberts’ discrimination claim, Judge Dorsey denied summary judgment for both parties on those issues.
To read the order in Roberts v. Clark County School District, click here.