Dr. Jillian T. Weiss

Public Accommodations Law Misconceptions and Trans Rights

Filed By Dr. Jillian T. Weiss | December 01, 2011 1:00 PM | comments

Filed in: Politics, Transgender & Intersex
Tags: gender identity, law against discrimination, nondiscrimination, public accommodations

There has been a lot of discussion over the past year in the trans community regarding the effect of "public accommodations" non-discrimination laws. The law professor in me is very happy to see that, as it shows that the trans community is becoming more and more educated about the law and how it can help or hurt us. At the same time, I think some misconceptions have crept into the discussion, and since I mentioned this issue in my last post, I thought it would be a good time to address it.

The context of this discussion is the introduction of state non-discrimination laws, most notably in Maryland last year and Massachusetts this year, which seek to include "gender identity" as a ground of non-discrimination. bathroom-sign.jpgSkipping over the many important complexities, I will define it here as discrimination based on one's gender-related identity, appearance or behavior, regardless of sex at birth. This includes everyone, whether transgender or not.

Laws against discrimination have traditionally included many areas of public life, such as public accommodations, employment, housing, credit, etc. Non-discrimination in public accommodations was originally planned to be part of the bill in both Maryland and Massachusetts, but then was taken out. The Massachusetts bill was recently signed into law. It's my understanding that the Maryland bill, not passed last year, is set to be reintroduced with the public accommodations language in the new bill.

Trans activists expressed some concerns about the removal of the "public accommodations" protection. Public accommodations non-discrimination includes important areas of life, such as hotels, restaurants, gas stations, and federal and state hospitals and government offices. Some argue that public accommodations language would protect trans people from discrimination in the use of public lavatories. Further, it has been suggested that the removal of public accommodations language from a trans civil rights bill would give rise to an argument that trans people, regardless of gender identity, transition status or lived experience, are required to use a public lavatory of the sex assigned at birth in all places and situations, where restrooms are segregated into male and female spaces. That argument would state that the removal of public accommodations language shows a "legislative intent" to exclude trans people from restrooms of their gender identity. Judges might use such an argument against trans plaintiffs who complain about an improper exclusion or arrest in regard to public bathroom usage.

These are serious concerns to consider, but there are also some serious flaws in the legal reasoning. While reasonable people can differ, it is my opinion that failure to include public accommodations language in a trans civil rights law does not necessarily create a barrier to appropriate public restroom usage by trans people.

The Federal Public Accommodations Non-Discrimination Law And Sex Discrimination

Let's start with the federal public accommodations non-discrimination law, which is 42 U.S.C. 2000a of the federal Civil Rights Act of 1964. The first thing to note it that it does not prohibit discrimination based on sex, and it does not include public lavatories.

(a) Equal access

All persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation, as defined in this section, without discrimination or segregation on the ground of race, color, religion, or national origin. (emphasis added)

(b) Establishments affecting interstate commerce or supported in their activities by State action as places of public accommodation; lodgings; facilities principally engaged in selling food for consumption on the premises; gasoline stations; places of exhibition or entertainment; other covered establishments

Each of the following establishments which serves the public is a place of public accommodation within the meaning of this subchapter if its operations affect commerce, or if discrimination or segregation by it is supported by State action:

(1) any inn, hotel, motel, or other establishment which provides lodging to transient guests, other than an establishment located within a building which contains not more than five rooms for rent or hire and which is actually occupied by the proprietor of such establishment as his residence;

(2) any restaurant, cafeteria, lunchroom, lunch counter, soda fountain, or other facility principally engaged in selling food for consumption on the premises, including, but not limited to, any such facility located on the premises of any retail establishment; or any gasoline station;

(3) any motion picture house, theater, concert hall, sports arena, stadium or other place of exhibition or entertainment; and

(4) any establishment

(A) which is physically located within the premises of any establishment otherwise covered by this subsection, or within the premises of which is physically located any such covered establishment, and which holds itself out as serving patrons of such covered establishment.

Hotels, restaurants, and theaters. That's what the federal law covers. That's it. It does also cover premises physically located within these establishments, and that is a hook to include public lavatories. But the law only covers race, color, religion and national origin discrimination. Not sex discrimination. A segregation of restrooms by race would be in violation of that law. But that law does not prohibit segregation based on sex.

Public accommodations protection is not a magic catch-all that protects all people from all types of discrimination at all times and in all places. It is, like all laws, meant to try to address one specific type of injustice to the extent that it can. There is no "public accommodations" fairy who waves a magic wand and keeps us safe, much as it is to be wished. As I try to drum into the heads of my students, who often have trouble distinguishing between TV and reality, the law is not about justice. It is an imperfect tool of inefficient human communication, and sometimes it is used to achieve what I and some others consider "justice," and there is always someone on the other side, wearing a black hat and cape with a whiplash mustache, cringing and snarling. There's an old law joke about the lawyer who sent a telegram to the client from the court: "JUSTICE HAS TRIUMPHED." The client responded: "APPEAL IMMEDIATELY."

This section of the law was enacted in the context of the Black civil rights movement of the 1950s and 1960s, based on the many legal and private restrictions on Black people using hotels, restaurants, theaters and other establishments. That's why one of the strategies of the movement was sit-ins at restaurant counters. Although one of the enduring images of the Jim Crow era is separate water fountains and restrooms for Blacks and Whites, there is no specific mention of water fountains or restrooms in the law.

Although one might find it surprising to hear that the definition of "public accommodation" is so limited, one must remember that the federal government has no specific mandate in the Constitution to outlaw discrimination, and that the main justification for the federal law was the carefully-documented impact on interstate commerce, over which the federal government is given control by the Constitution. The law was carefully designed to address the economic impact on Black people of segregation, which essentially meant you couldn't travel to do business because you couldn't stay at a hotel, buy food or get gas. There is no mention of other important places of public accommodation, such as hospitals.

The federal law reaches a lot more institutions, including many hospitals, but not through public accommodations protection. The federal law has a separate section making it illegal for any program or activity receiving federal funds to discriminate based on race, color or national origin. But hospitals not receiving federal funds are not reached. Although some state civil rights laws include hospitals in their definition of public accommodations, others do not include them. "Public accommodations" sounds like it could include anything to the non-legal ear, but the actual law is a lot more limited than you might think.

Adding Gender Identity to State Public Accommodations Laws Is More Complicated Than It Appears

State laws on public accommodations more or less follow the federal model, though they are often less restricted because those governments, unlike the federal government, are not restricted to protecting "interstate commerce." Although the federal law doesn't prohibit sex discrimination in public accommodations, most state statutes do. In addition, state statutes often include other places than hotels, restaurants and theaters. Maryland and New York provide two examples of the scope of state public accommodations non-discrimination law. However, these laws rarely explicitly include public lavatories, and the term "sex" is rarely defined.

There are other procedural hurdles, such as the fact that, in Maryland, a private individual cannot bring suit based on this statute, but only the sleepy Maryland Commission on Civil Rights. That means you have to add a private right of action to the statute. In addition, the default assumption in the mind of many legal officials is that there is no legal problem with segregation of public lavatories based on birth sex. That means you have to add a specific piece explaining the interaction of "public accommodations" and "gender identity."

These are some of the reasons that public accommodations protection is often a more uphill political battle than even the main battle to add of gender identity protection to the civil rights law. Not only are you fighting to add in a new protected category to the law, you have to fight to redefine "public accommodation." The more moving parts you add, the harder the political lift.

The law in Massachusetts is particularly interesting because it has long specifically defined "rest rooms" (subsection 5) as a place of public accommodation. We might breathe a sign of relief, because it's one less piece to add and one less battle to fight. But it's a case of one step forward and two steps back. The statute specifically exempts those public accommodations "segregated on the basis of sex." So now it's more of a battle because not only do you have to fight to add in a new protected category, you have to either undo a specific exemption for sex segregated schools, camps, swimming pools and gyms, which a lot of people aren't going to like, or you have to add a section to explain how the sex-segregation exemption works with the definition of gender identity. As shown by the example of New Jersey, that's not as easy as it looks. (On a side note, the Massachusetts law also has a strange history regarding sex segregation of health clubs, which shows how crazy it can get.)

New Jersey, commendably, prohibited discrimination based on gender identity in public accommodations back in 2006. (Thank you, Babs.) However, it had long allowed a place of public accommodation "which is in its nature reasonably restricted exclusively to individuals of one sex," to refuse accommodation to individuals of the other sex. The statute includes in the exemption places such as single-sex camps, swimming pools, gyms, hospitals and schools. It also explicitly refers to "dressing rooms" and "comfort stations". ("Comfort stations" is undefined in the statute, but a brief review of New Jersey case law suggests it means public lavatories.)

When the time came to add in gender identity to the statute, the drafters had to figure out how to exempt gender identity from the the sex-segregation exemption. Here's what they came up with, and trust me, this is a fairly elegant solution.

provided, however, that nothing contained herein shall be construed to bar any place of public accommodation which is in its nature reasonably restricted exclusively to individuals of one sex, and which shall include but not be limited to any summer camp, day camp, or resort camp, bathhouse, dressing room, swimming pool, gymnasium, comfort station, dispensary, clinic or hospital, or school or educational institution which is restricted exclusively to individuals of one sex, provided individuals shall be admitted based on their gender identity or expression, from refusing, withholding from or denying to any individual of the opposite sex any of the accommodations, advantages, facilities or privileges thereof on the basis of sex; provided further, that the foregoing limitation shall not apply to any restaurant as defined in R.S.33:1-1 or place where alcoholic beverages are served.

(N.J. Statutes 10:5-12f) If you suddenly have a headache, I completely sympathize. I have italicized the provision above "provided individuals shall be admitted based on their gender identity or expression." That's the key phrase. But there is a slight problem. Commendable as it is, it's as clear as mud about trans people in public lavatories.

I am not entirely certain what this means with regard to the admission to a single-sex facility, such as "comfort station." New Jersey defines "gender identity or expression" to mean (N.J. Statute 10:5-5rr) "having or being perceived as having a gender related identity or expression whether or not stereotypically associated with a person's assigned sex at birth." At first glance, it seems that I get to go into the bathroom consistent with my gender identity. But as a professor of mine was fond of saying, statutes are not drafted to be as clear as possible, they are drafted as ambiguously as possible to provide political cover for legislators.

What if I have a gender-related identity and expression that is female, but I am perceived by others as having a male gender-related identity or expression? What if my gender-related identity is different from my gender-related expression? Am I supposed to be admitted "based on" the gender-related identity or the gender related expression that I "have," or, that I am "perceived as having." Which one controls in the "based-on" admission? What do you think a conservative-leaning judge would say about that one? I am fond of paraphrasing Clausewitz: law is politics by other means.

Here we have a statute that was obviously, from my point of view, intended to allow transgender people to go to the appropriate bathroom. But I don't see a way of cleaning it up without excluding someone. I mean, you could just write "anyone gets to go to whichever bathroom they want" and stick it onto the end of the statute, but how much chance do you think that has of passage? No, the question we are facing here is whether the simple addition of "gender identity" to a public accommodations non-discrimination means that transgender people can go to the appropriate bathroom, and the answer is that it's not clear.

There are three cities with very favorable, and very lengthy regulations on bathroom usage for trans people: New York, San Francisco, and D.C. But if you go look at the statutes on which those regulations are based, you won't see anything about bathroom usage. These are interpretations by regulatory agencies in very liberal political environments. While those cities' regulatory authorities interpreted the inclusion of gender identity in their public accommodation non-discrimination laws to mean that trans people should be permitted use of appropriate public lavatory facilities, they could just have easily denied the use of appropriate public lavatory facilities.

The Case Law Interpreting Non-Discrimination Law In Relation To Public Lavatories Isn't Very Favorable

There are only three published court cases, to my knowledge, discussing whether a statute prohibiting gender identity discrimination affects the right of a transgender person to use the bathroom of their new gender identity. In two cases, one in New York and one in Minnesota, both of which protected trans people under gender identity-type non-discrimination laws, the courts denied the right of the plaintiffs to use the bathroom of their gender identity. (I note that the New York case was handed down prior to the announcement of the favorable New York regulations.)

These cases were not brought under public accommodations non-discrimination law, but I believe the question is the same: does a statute prohibiting discrimination based on gender identity mean that trans people have the right to use the appropriate public lavatory? The answer in both cases was in the negative.

In the 2005 New York case, Hispanic AIDS Forum v. Bruno, an NYC building owner allegedly refused to renew a lease of office space because of the use of public bathrooms by transgender clients of the tenant, a social service agency. The court acknowledged that NYC law prohibited discrimination based on gender identity. Nonetheless, the majority opinion held that the law did not require the building owner to honor the gender identity of the Forum's transgender clients for purposes of bathroom use.

The court threw the case out because the transgender individuals were not selectively excluded from the bathrooms. Rather, they were excluded on the same basis that all biological males and/or females are excluded from certain bathrooms -- their "biological" sex. The landlord's discrimination for purposes of bathroom use, though it denied transgender individuals recognition of their gender identity, did not discriminate on the basis of their gender identity, according to the court.

The court referred favorably to the Minnesota Supreme Court's 2001 decision in Goins v. West Group. In that case, a transgender employee claimed discrimination based on her employer's exclusion of her from the women's bathroom. The Minnesota law prohibited employment discrimination based on sexual orientation, defined in part as "having or being perceived as having a self-image or identity not traditionally associated with one's biological maleness or femaleness."

The Minnesota court said that the employer's bathroom rule did not discriminate on the basis of gender identity. The rule contained no reference to gender identity; therefore, there was no discrimination based on gender identity. The Court said that the rule discriminated based on biological sex, not gender identity. Therefore, it did not violate the statute.

Even if the employer's rule were interpreted as gender identity discrimination, the Court questioned whether there was any intent to change the "cultural preference" for same-sex bathrooms. Since there was no legislative history on this point, the court decided that the words of the statute did not apply to bathroom usage.

The bottom line on these opinions is that the only two published cases interpreting statutes prohibiting "gender identity" discrimination in the facilities usage context have ruled that these statutes did not prohibit discrimination based on biological sex in the bathroom.

These cases are subject to much criticism, and I have discussed that in another post, but the point is that the courts didn't go for the idea that gender identity non-discrimination means public lavatory usage.

There is a case in which a court interpreted statutory gender identity protection to include bathroom usage. In the Maine case of Denny's v. Freeman, a trans woman was denied the usage of a woman's restroom in a restaurant. The Maine statute prohibits gender identity discrimination in public accommodations, though it mentions nothing about sex segregated facilities or public lavatories. Denny's sought to have Ms. Freeman's case thrown out of court at a preliminary stage of litigation, prior to a trial, arguing that, even assuming that all of the facts alleged by Ms. Freeman were true, she had no legal right to use the women's lavatory. Denny's relied on the argument from the Goins case discussed above, saying that the restaurant manager did not prohibit Ms. Freeman from using the women's room because of her gender identity. Rather, the manager prohibited her from using the women's room because of her perceived biological maleness.

But the Maine court ignored the Goins case, and didn't even mention it in their decision. Instead, it held that, at least at that preliminary stage in the proceedings, she stated a claim that entitled her to go to trial on the issue of whether her rights had been violated. The court noted that, under the statute, she had no right to damages, which, in my view, means that the law is relatively toothless. Nevertheless, Denny's soon settled the suit and agreed to allow her to use the women's restroom.

While I am happy that the Maine court ruled in Ms. Freeman's favor, it's important to note that the ruling didn't definitively state that her rights had been violated, but only that she stated enough facts to move to a trial. In addition, the decision is from a lower court, and there is no telling what an appeals court might say as to whether that decision was correct under Maine law.

It is possible that the insertion of gender identity non-discrimination in a state statute will be interpreted to permit appropriate restroom usage by a trans person. But it is also possible that it won't have that effect at all.

There Is No Valid Argument That Dropping Public Accommodations Protection Means Trans People Can't Use The Appropriate Bathroom

It is entirely true that, in the past, judges have used the failure to pass a bill that was considered and rejected as evidence of "legislative intent" as to the meaning of statutes in force. One example that comes to mind is the question of whether "sex discrimination" under the federal employment non-discrimination statute includes transsexuals. In the 1976 Voyles case, a lower court federal judge reasoned that Congress understood
that "sex" did not include transsexuals because legislation had been proposed (but not voted on) to add "affectional or sexual preference. " If Congress understood Title VII to include affectional or sexual preference, reasoned the judge, then no such legislation would be necessary. (Of course, we all know that being trans is different from sexual orientation.) Several other cases have made the same argument. But the Voyles argument is not only illogical, but against the modern trend of judicial statutory interpretation.

As noted above, inclusion of gender identity protections in a public accommodations law does not necessarily mean anything about the right of trans people to use an appropriate public lavatory. Since the presence of public accommodations protection will not ensure the right to use a public lavatory, its absence means nothing. Thus, failure to include public accommodation protections cannot diminish the right to use the appropriate bathroom, to the extent that it may already exist.

Furthermore, the Voyles argument is made from the introduction of a bill, not from its failure to be introduced. In fact, the Voyles argument suggests that it's better not to introduce the law at all, because it is the introduction and nonpassage that allows the inference of legislative intent. Under the Voyles logic, failure to introduce a bill would give rise to the argument that the law already provides such protection. The failure to introduce a public accommodations bill would suggest that none is needed because the protection already exists.

But in any event, the Voyles argument is laughable, though it's not funny that some courts fell for it. The question asked by the Voyles court is what Congress "intended" by not passing a bill that was introduced. First, it is ridiculous to decide that 500 legislators meant the same thing -- or anything at all -- from the fact that a bill was introduced but wasn't voted on. There are many bills introduced by individual legislators, and they may not get a vote for any number of reasons. Second, a bill may be proposed to clarify already existing legal protections, so the fact of its introduction doesn't mean the protections are not there. Third, modern jurisprudence frowns on the use of so-called "legislative intent" in trying to decide what a statute means, and even the most conservative judges oozing with transphobia would agree with that.

There is a famous quote from Supreme Court Justice Scalia, well known for being conservative in political ideology:

[S]tatutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the
principal concerns of our legislators by which we are governed.

In other words, judges are no longer so concerned with legislative intent as they once were.

I strongly question the idea that passage of a gender identity non-discrimination law without public accommodations protections would persuade a judge that trans people have to refer to their birth certificates to go to the bathroom, if they weren't already persuaded of it. There are plenty of better bad reasons for a judge to cite, like the Minnesota Supreme Court's "cultural preference" argument in the Goins case discussed above, and its silly distinctions about "biological gender."


Should one should hold up a bill that will prohibit gender identity discrimination because public accommodations protection is not included? There are many factors to be considered, as I have discussed above, and I cannot give a blanket answer to that question. But one should certainly not assume that insertion of "gender identity" into a state public accommodations law is going to achieve the result of requiring appropriate bathroom usage by trans people.

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