In recent weeks, North Carolina has enacted a law to require transgendered persons to use restrooms of their birth gender. Although a suit to hold the law unconstitutional was filed almost immediately, several other states are considering such bills. A recent case from a federal appeals court for the circuit including North Carolina (G.G. v. Gloucester Co. Sch. Bd., No. 15-2056, 4th Cir., Apr. 19, 2016), <http://www.ca4.uscourts.gov/Opinions/Published/152056.P.pdf>), however, strongly suggests that federal regulations probably already require treatment of transgendered persons according to their own gender identification. Under the Constitution’s Supremacy Clause, federal law overrides conflicting state law, so this would knock out most transgendered restroom bills.
In 2014, a pre-operative transgendered student (born female, but identifying as male) at a Virginia high school obtained permission from the school to use boys’ restrooms. He does not participate in physical education and did not request to use locker rooms or showers. The school board responded by enacting a policy requiring students to use restrooms of their birth gender. The student sued for an injunction allowing him to use the boys’ restroom. He objected to using unisex restrooms because he considered it stigmatizing.
The trial court dismissed the suit as not alleging a claim the law could address because it interpreted a Department of Education regulation allowing for separate restrooms as the final word and thought that Title IX prohibited discrimination on the basis of sex, but not gender identity. The Court of Appeals disagreed, noting that in 2015, the Department, in response to a series of districts asserting the separate-restroom regulation as allowing prohibition of transgnder students from one or the other restroom, had issued an official interpretation stating that as applied to transgendered students, the student’s gender identity controlled. Because the appellate court found the interpretation reasonable, it deferred to the Department’s interpretation.
Similar regulations and guidelines allowing transgendered persons access to restrooms of their identified gender have been issued by the federal agencies in charge of anti-discrimination laws applying to most other areas where transgendered restroom bills might be enforced. These include OSHA (workplace safety), the EEOC (workplace discrimination), HUD (most federal housing programs), and OPM (federal employment), In fact, the court relied on the existence of these guidelines and regulations in holding that he Department of Education’s interpretation was reasonable. This suggests that if these other guidelines and regulations are applied to transgendered restroom bills, they also would be found to override the state bills.
The school board has already announced that it will appeal the ruling, either to the full Court of Appeals (instead of the three judge panel that decided the case) or to the Supreme Court. I doubt, however, that either court wil be inclined to reverse. I predict, therefore, that most of the transgendered restroom bills are likely to be ruled blocked by federal law. The North Carolina law is particularly vulnerable because the Court of Appeals that issued the new opinion is directly controlling over the federal courts in North Carolina. (The North Carolina Attorney General has already announced that he does not find the law defensible and will not be defending the suit there.)
I doubt that either Oregon or Washington would enact similar laws, but there is always the possibility of an initiative being passed. I expect any such initiative to be quickly ruled preempted.