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Trans-gender access:

Sports teams to locker rooms and bathrooms
 

Norman P. Jeddeloh »
P 312.876.6928 | F 312.876.0288 | npjeddeloh@arnstein.com

With the recent amendments to the Illinois Human Rights Act prohibiting discrimination based upon sexual orientation including “gender related identity,” educational institutions may soon experience new disputes with trans-gendered students, faculty and staff demanding, among other benefits, gender specific access to accommodations.  In no context are these potential disputes more thorny than those arising in the context of students’ participation in sports teams.  Questions will be raised about whether a trans-gendered person has a right to participate in the sports teams of the sex with whom the person identifies and, if so, what standards or criteria will be employed in assessing that legal right.  Further, a new variety of sexual harassment disputes may arise as a result of the use of demeaning and derogatory terms aimed at trans-gendered persons originating from peers and perhaps coaches (e.g., “he plays like a girl” or is a “sissy.”).  Different arguments on these subjects may be made by persons who only identify themselves as being a member of the opposite sex versus persons who have begun the process of change versus persons who have actually undergone the biological transition.  The question will be raised as to what access rights accrue to each of these subclasses and when.  Still more disputes may relate to the standing of others to bring some legal action against an institution deciding to accommodate a nascent transsexual, especially before the biological change has occurred.  Athletes who have transitioned from male to female may be considered by some to have an unfair competitive advantage against persons female from birth.  Athletes changed from female to male raise issues as to the use of performance-enhancing drugs, such as testosterone.  And some may argue that forced association with trans-gendered persons in relatively intimate settings itself creates a hostile environment.

Any one of these issues possibly implicate the Illinois Human Rights Act, Title VII of the Federal Civil Rights Act of 1964 or Title IX of the Education Amendments.  The First Amendment to the United States Constitution could even be interpreted as prohibiting the suppression of demonstrative speech in the form of dress or similar expression.

Policy Guidance

Very little guidance is available to institutions of higher education in negotiating through these difficult problems.  In 2004, the Executive Committee of the International Olympic Committee set forth criteria for determining eligibility for trans-sexual and transitioned athletes to participate in Olympic events.  [See link.]  The IOC differentiated between individuals undergoing sex-reassignment surgery before puberty and those undergoing reassignment surgery after puberty, although the true usefulness of that distinction is not entirely clear.  The IOC also determined that those undergoing reassignment surgery after puberty (probably the overwhelming majority), could participate in team events with those of their changed sex if the surgical procedures were completed, the reassigned sex was confirmed, hormonal therapy had been administered for a sufficient period to minimize gender-related advantages, and eligibility began no sooner than two years after the surgery.  These very stringent and restrictive standards were considered by the NCAA but never actually adopted.  Currently, a NCAA committee is considering trans-gender student issues.  At present, the NCAA is guided by the gender classification on a student’s state issued identification card as well as designations made by the conference or the institution.  The Los Angeles County School District is the only educational authority in the country having a published and readily available policy on trans-gendered participation in athletic events.  [See link.]  Its policy is less than completely elucidating.  Boiled to its basics, this policy assures full access in the context of required gym activities but states that access to participation in competitive teams will be taken up on a case-by-case basis.

Legal Standards

The dearth of solid guidance in this area is understandable.  Currently, no law or regulation specifically requires an institution to accommodate a trans-gendered person’s access to membership on an athletic team of the person’s choosing.  The Illinois Human Rights Act, despite the newly enhanced definition of unlawful discrimination to include trans-gendered persons, covers conduct only in employment, public accommodations, financial transactions, real estate transactions, and higher education, but limited to claims of “sexual harassment.”  Considering that the Illinois Supreme Court has determined that universities, in providing educational experiences, are not considered to be “public accommodations” (Board of Trustees of Southern Illinois University v. Department of Human Rights, 159 Ill. 2d 206 (1994)), the Human Rights Act does not reach so far as to regulate universities in granting or denying access to sports teams.

Neither is it likely that Title IX will serve as a source of significant rights except in the context of sexual stereotyping (see below).  Generally, federal courts rely on a traditional definition of the term “sex,” holding unlawful only, as the Seventh Circuit has stated, “discriminat[ion] against women because they are women and men because they are men.”  Ulane v. Eastern Airlines, 742 F. 2d 1081 (7^th Cir. 1984).  Occasionally cases involving trans-gendered participation pop up, but mostly they are decided under a public accommodation provision or in some other unique circumstance.  For example, in the 1977 case of Renee Richards v. United States Tennis Association, 400 N.Y.S. 2d 267 (1977), the plaintiff, a male-to-female transsexual, sued to demand a place in the U.S. Open (tennis) Women’s Division even though she declined to undergo an examination to verify her biological sex.  Richards won that case under a New York human rights law and participated in the match as a female.

Harassment Claims

Trans-gendered persons are not completely without potential remedies.  The Illinois Human Rights Act prohibits “sexual harassment” in higher education at both public and private higher education institutions.  The Act defines this term extremely broadly.  Prohibited conduct includes making student’s submission to an intimidating, hostile, or offensive environment a term or condition of, among other things, a student’s participation in “extracurricular competitions.”  It could be argued, quite easily for that matter, that, if a trans-gendered person is subjected to taunts or derogatory comments when participating on an athletic team, the prohibitions of this section come into play.

There is an echo of such liability in federal law relating to sexual stereotyping.  Title IX has been held applicable to sexual stereotyping harassment in education.  See:  Montgomery v. Independent School Dist. No. 709, 109 F. Supp. 2d 1081(D. Minn. 2000) (holding that harassment based on “stereotyped expectations of masculinity” is prohibited by Title IX).[1]  The Court in Montgomery v. Independent School District relied on a similar concept in federal employment discrimination jurisprudence.  While generally Title VII has been held not to cover discrimination based upon an individual’s identity as a transsexual, the U.S. Supreme Court has also held, in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) that “sexual stereotyping” could be a basis for a Title VII violation.  Sexual stereotyping occurs when one perceived as a man or a woman does not act in stereotypical fashion and suffers an adverse employment consequence as a result (e.g., a female accountant who is not “feminine” enough).  The Seventh Circuit followed this approach in Doe v. City of Belleview, 119 F. 3d 563 (7^th Cir. 1997), finding for the employee when she was discriminated against for failure to conform to stereotypical gender norms.  And another federal circuit, the Sixth Circuit, has recognized a cause of action for a trans-sexual claiming protection under Title VII, saying that employers who discriminate against men because they, for instance, wear dresses and make up or otherwise act femininely are also engaging in sex discrimination because the discrimination would not occur but for the victim’s sex.  Barnes v. City of Cincinnati, 401 F. 3d 729 (6^th Cir. 2005).  The thinking contained in these cases could apply to the higher education “sexual harassment” branch of the Human Rights Act since derogatory comments about trans-gendered persons could arise from similar stereotypes.  For these reasons, institutions should specifically assure that anti-harassment policies extend to student participation in athletic events and on athletic teams.

Locker Rooms and Bathrooms

Equally difficult questions are raised by an athlete’s use of locker room facilities.  No specific Illinois state law requires segregation by sex in the use of locker room and bathroom facilities.[2]  Rather, this form of segregation is more by social custom.  There are no reported cases specifically involving student use of lockers or bathrooms.  Cases which have been decided arise in the context of employment discrimination, not accommodation discrimination.  Cruzan v. Special School District No. 1, 294 F. 3d 981 (8^th Cir. 2002) is often cited by trans-gendered activists as supporting the right of trans-gendered persons to use the bathroom facility of the sex with which they identify.  In that case, another teacher in the school unsuccessfully filed claims alleging discrimination (religious discrimination, hostile working environment) because of a trans-gendered person’s use of a woman’s washroom.  The court dismissed this claim, finding that employers are not liable for unlawful discrimination for allowing a trans-gendered person to access the restroom of the identified gender.  On the other hand, in a case cited by Cruzan, Goins v. West Group, 635 N.W. 2d 717 (2001), the Minnesota Supreme Court held that it is not sexual orientation discrimination for an employer to designate restroom use on the basis of biological gender.  In that case, the plaintiff was an individual who was a biological male at birth but, for a period of at least two years before her employment with the defendant, had consistently publicly presented herself as a female.  She had not undergone sex change surgery.  Some of the defendant’s employees expressed concern about sharing a women’s restroom with a male.  The company’s HR department took these complaints to raise a hostile working environment concern, and therefore decided to enforce a restroom policy according to biologic gender.  The trans-gendered plaintiff’s sexual orientation discrimination claim based on the enforcement of a restroom policy denying her access to the women’s restroom was rejected by the Court.  The Court found that the human rights act in the state of Minnesota neither required nor prohibited restroom designation either according to gender self-image or according to biologic gender.  Similarly, in 2005, a New York Appellate Court in a case called Hispanic AIDS Forum v. Estate of Bruno, 792 N.Y.S. 2d 43 (App. Div. 2005), supported a restroom policy based upon “biological sexual assignment” but in the context of the lease of space to an organization serving transsexuals.  Of course, neither of these cases reached the question of a person who has completed the surgical transition to the opposite sex and is therefore the identified sex both biologically and emotionally.  But these cases strongly suggest that employers and others may adopt any reasonable and rational rule about bathroom use if consistently applied.  By analogy, it could well turn out that the same would hold true for institutions of higher education in determining locker room access for members of sports teams.

Conclusion

In light of the conundrum posed by trans-gendered persons and access to accommodations, universities and institutions of higher education faced with the challenge of a complaint relating to access by a trans-gendered person should consider the possible impact of the Illinois Human Rights Act and federal anti-discrimination prohibitions.  In what could become an emerging equity issue in athletics, institutions will be well advised to establish consistent and rational policies in this difficult area.

For more information on this topic, the reader may access the Trans-Gender Law and Policy Institute, visit www.transgenderlaw.org.