Contributor, The Volokh Conspiracy

A gender neutral sign is posted outside a bathrooms at Oval Park Grill on May 11, 2016 in Durham, North Carolina. (Photo by Sara D. Davis/Getty Images)

Multi-person bathrooms, showers, and the like in the U.S. have generally been limited to members of one sex (whether by law or by custom). This rule remains generally accepted; few people have argued that it’s illegal or unconstitutional to generally exclude men from women’s shower rooms. The question has been how sex is to be defined. Should people be allowed to use the restroom or shower that corresponds to their self-reported gender identity? Should the matter turn on their gender identity as somehow demonstrated through (say) a note showing that the person is actively transitioning or transitioned from one gender to another? (Where, by the way, would that leave “gender-fluid” people, who believe that their gender identity can change in the course of a day?) Should the matter turn on the sex on a person’s birth certificate (which may be amended through legal procedures)? Should it turn on a person’s anatomical sex? A federal district court last Friday, in Carcaño v. McCrory, further faced these questions.

1. The North Carolina Legislature recently passed a law that required public entities to maintain single-sex bathrooms and showers (again, setting aside single-occupancy units), with the sex to be determined by the person’s birth certificate. The district court concluded that this likely violates the federal Title IX statute — and this was unsurprising, given a recent precedent from the Fourth Circuit, the federal appellate court that sets binding federal precedent for North Carolina and neighboring states.

That court of appeals decision (in G.G. v. Gloucester County School Board) deferred to the U.S. Department of Education interpretation of Title IX. Under that interpretation, schools that get federal funds had to let students use the bathrooms corresponding to their self-reported gender identity. The district court basically followed that binding precedent, though it also concluded that the precedent applied not just to bathrooms but also to shower facilities, locker rooms, and the like. (The Fourth Circuit decision was limited to bathrooms, but the district court concluded — soundly, I think — that the logic of that decision applied equally to showers and locker rooms.)

2. But the plaintiffs also argued that the Equal Protection Clause independently requires all government entities, whether or not they receive federal funds, to allow people to use the facilities that correspond to their felt gender identities. (“[P]ublic rest stops,” for instance, may be run by the government but might not be covered by Title IX.) And here the federal district court concluded that the plaintiffs were likely to lose:

[Government-imposed] classifications based on sex are subject to intermediate scrutiny. Under intermediate scrutiny, the State must demonstrate that the challenged law serves “‘important governmental objectives and that the discriminatory means employed’ are ‘substantially related to the achievement of those objectives.'” … “[T]he burden of justification is demanding and it rests entirely on the State.” In addition, the justification must be “genuine, not hypothesized or invented post hoc in response to litigation.” Finally, the justification “must not rely on overbroad generalizations about the different talents, capacities, or preferences of males and females.”

[The North Carolina law] classifies citizens on the basis of “biological sex” and requires that each sex use separate multiple occupancy bathrooms, showers, and other similar facilities. Because [the law] facially classifies and discriminates among citizens on the basis of sex, intermediate scrutiny applies.

There is no question that the protection of bodily privacy is an important government interest and that the State may promote this interest by excluding members of the opposite sex from places in which individuals are likely to engage in intimate bodily functions. See, e.g., Faulkner v. Jones, 10 F.3d 226, 232 (4th Cir. 1993) (“The point is illustrated by society’s undisputed approval of separate public rest rooms for men and women based on privacy concerns. The need for privacy justifies separation and the differences between the genders demand a facility for each gender that is different.”); Lee v. Downs, 641 F.2d 1117, 1119 (4th Cir. 1989) (“Most people, however, have a special sense of privacy in their genitals, and involuntary exposure of them in the presence of people of the other sex may be especially demeaning and humiliating.”); see also Doe v. Luzerne Cty., 660 F.3d 169, 176-77 (3d Cir. 2011) (observing that several circuits have recognized “a constitutionally protected privacy interest in [one’s] partially clothed body”); Sepulveda v. Ramirez, 967 F.2d 1413, 1416 (9th Cir. 2012) (stating that “[t]he right to bodily privacy is fundamental” and noting that “common sense” and “decency” protect a parolee’s right not to be observed by an officer of the opposite sex while producing a urine sample); York v. Story, 324 F.2d 450, 455 (9th Cir. 1963) (“The desire to shield one’s unclothed figure from view of strangers, and particularly strangers of the opposite sex, is impelled by elementary self-respect and personal dignity.”). This interest is particularly strong with regard to minors. See, e.g., Beard v. Whitmore Lake Sch. Dist., 402 F.3d 598, 604 (6th Cir. 2005) (“Students of course have a significant privacy interest in their unclothed bodies.”); Doe v. Renfrow, 631 F.2d 91, 92-93 (7th Cir. 1980) (stating that it “does not take a constitutional scholar” to conclude that a strip search invades a student’s privacy rights). At the hearing on this motion, Plaintiffs acknowledged that the practice of segregating bathrooms and other similar facilities on the basis of sex promotes this government interest. (See Doc. 103 at 15-19.)

All parties agree that bodily privacy qualifies as an important State interest and that sex-segregated facilities are substantially related to that interest. But the relevant authorities do not define “sex” or explicitly explain which differences between men and women give rise to the State’s interest in separating the sexes for privacy purposes; generally, these cases simply observe that individuals of one sex have a privacy interest in being separated from “the other sex.”

Not surprisingly, then, the parties disagree about which definition of “sex” promotes the State’s interest in bodily privacy. Defendants contend that bodily privacy interests arise from physiological differences between men and women, and that sex should therefore be defined in terms of physiology for the purposes of bathrooms, showers, and other similar facilities. Plaintiffs, by contrast, implicitly contend that bodily privacy interests arise from differences in gender identity, and that sex should therefore be defined in terms of gender identity for the purposes of these facilities.

To support their position, Plaintiffs submitted expert declarations stating that, from a “medical perspective,” gender identity is the only “appropriate” characteristic for distinguishing between males and females. Defendants have indicated their strong disagreement with this position, though they have not yet offered any evidence on this point in this case. [Footnote: … Defendants recently offered medical evidence in [an accompanying] case.] But regardless of the characteristics that distinguish men and women for “medical” purposes, Supreme Court and Fourth Circuit precedent supports Defendants’ position that physiological characteristics distinguish men and women for the purposes of bodily privacy.

Although the Supreme Court has never had an occasion to explicitly explain which differences between men and women justify the decision to provide sex-segregated facilities, the Court has generally assumed that the sexes are primarily defined by their differing physiologies. In [the Virginia Military Institute case], for example, … [e]ven while rejecting stereotypical assumptions about supposed “inherent differences” between men and women, the Court acknowledged, “Physical differences between men and women … are enduring,” adding that the “two sexes are not fungible.” The Court then linked these physiological differences to privacy considerations, adding, “Admitting women to VMI would undoubtedly require alterations necessary to afford members of each sex privacy from the other sex in living arrangements, and to adjust aspects of the physical training programs.” …

[Indeed], as recently as January 2016, the Fourth Circuit cited [the VMI case] approvingly while concluding that physiological differences justified treating men and women differently in some contexts. See Bauer v. Lynch, 812 F.3d 340, 350 (4th Cir. 2016). In Bauer, a male applicant “flunked out of the FBI Academy after falling a single push-up short of the thirty required of male Trainees.” The applicant sued, noting that his performance would have qualified him under the different physical fitness standards applied to female applicants. The Fourth Circuit found that different standards for men and women arose from the FBI’s efforts to “normalize testing standards between men and women in order to account for their innate physiological differences,” such that an approximately equal number of men and women would pass the tests. In light of this, the Fourth Circuit concluded that the FBI’s policy was permissible because “equally fit men and women demonstrate their fitness differently.” In concluding that the FBI could distinguish between men and women on the basis of physiology, the court explained:

Men and women simply are not physiologically the same for the purposes of physical fitness programs…. The Court recognized [in Virginia] that, although Virginia’s use of ‘generalizations about women’ could not be used to exclude them from VMI, some differences between the sexes were real, not perceived, and therefore could require accommodations.

In light of the foregoing, it appears that the privacy interests that justify the State’s provision of sex-segregated bathrooms, showers, and other similar facilities arise from physiological differences between men and women, rather than differences in gender identity. The Fourth Circuit has implicitly stated as much, albeit in dicta, noting:

When … a gender classification is justified by acknowledged differences [between men and women], identical facilities are not necessarily mandated. Rather, the nature of the difference dictates the type of facility permissible for each gender.

The point is illustrated by society’s undisputed approval of separate public rest rooms for men and women based on privacy concerns. The need for privacy justifies separation and the differences between the genders demand a facility for each that is different. Therefore, any analysis of the nature of a specific facility provided in response to a justified purpose, must take into account the nature of the difference on which the separation is based ….

In fact, even Plaintiffs’ counsel acknowledged the State’s interest in, for example, ensuring that “12-year-old girls who are not familiar with male anatomy” are not exposed to male genitalia by “somebody older who’s showing that to them, a mature adult.” As a result, it appears that the constitutionality of [the North Carolina law] depends on whether the law’s use of birth certificates as a proxy for sex is substantially related to the State’s privacy interest in separating individuals with different physiologies.

There is little doubt that [the law] is substantially related to the State’s interest in segregating bathrooms, showers, and other similar facilities on the basis of physiology. By Plaintiffs’ own allegations, “The gender marker on a birth certificate is designated at the time of birth generally based upon the appearance of external genitalia.”

Plaintiffs contend that birth certificates are an “inaccurate proxy for an individual’s anatomy” because some transgender individuals have birth certificates that do not reflect their external physiology, either because (1) they were born in a State that permits them to change the sex on their birth certificates without undergoing sex reassignment surgery, or (2) they were born in a State that does not permit them to change the sex on their birth certificates, regardless of whether they undergo sex reassignment surgery. But even if the court assumes (contrary to the evidence in the record) that no transgender person possesses a birth certificate that accurately reflects his or her external physiology, Part I would still be substantially related to the State’s interest because, by Plaintiffs’ own estimate, only 0.3% of the national population is transgender. For the remaining 99.7% of the population, there is no evidence that the sex listed on an individual’s birth certificate reflects anything other than that person’s external genitalia. Without reducing the “reasonable fit” requirement to a numerical comparison, it seems unlikely that a law that classifies individuals with 99.7% accuracy is insufficient to survive intermediate scrutiny….

In sum, Supreme Court and Fourth Circuit precedent support the conclusion that physiological differences between men and women give rise to the privacy interests that justify segregating bathrooms, showers, and other similar facilities on the basis of sex…. At this preliminary stage, and in light of existing case law, Plaintiffs have not made a clear showing that they are likely to succeed on their Equal Protection claim.

3. The careful reader might wonder: If (1) there is indeed “a constitutionally protected privacy interest in [one’s] partially clothed body,” (2) that interest makes it presumptively unconstitutional to require people “to be observed by [people] of the opposite sex” while using bathrooms and the like, and (3) “the privacy interests that justify the State’s provision of sex-segregated bathrooms, showers, and other similar facilities arise from physiological differences between men and women, rather than differences in gender identity,” then wouldn’t that constitutional interest trump the Department of Education’s interpretation of Title IX? Wouldn’t the government not just be allowed by the Equal Protection Clause to limit restrooms by biological sex, but also be required to do so?

The district court reserved judgment on that, because apparently the argument had not been sufficiently made by the defenders of the North Carolina law in this case (though it has been made in other cases that are now pending throughout the country, and it may still be made in this case):

Defendants next argue that G.G. did not involve any constitutional challenges to DOE regulations or the DOE opinion letter. True, the Fourth Circuit noted the absence of such challenges in G.G., whereas Defendants did raise such issues in their answer and counterclaims. But Defendants have not raised any constitutional defenses in their responses to the individual transgender Plaintiffs’ motion for preliminary injunction, and Plaintiffs therefore have not yet responded to these issues. Of course, Defendants may ultimately develop successful constitutional defenses at a later stage of the proceedings.

All these disputes, of course, will doubtless not end at the district court level, but will go up at least to the Fourth Circuit (and, in other case, to other circuit courts), and likely to the U.S. Supreme Court.