August 16, 2019

Returning to the Can: A Bathroom Reading Companion to “Gender Identity and Public Restrooms: The Burgeoning Battle over Bathroom Building”

Edward B. Gentilcore

Just about a year and a half ago, I embarked on a somewhat unexpected journey.  Having spent a great deal of time writing on very relevant, but still admittedly dry, topics such as mechanics’ liens, statutes of repose, and construction litigation jury instructions, I felt it was time to travel out of my lane and explore an issue brought to my attention by some cases that had emerged from my home state of Pennsylvania.  These cases were focused on, of all things, public restrooms and the right of access to those bathrooms by, in one instance, an employee, and in the other, a student.

I ventured into the research on the issue of bathroom access not sure of what I would find lurking in the depths of the plumbing on this new topic (at least new to me).  Having lifted the lid on this analysis, I found the work of many already thinking about and looking to accommodate the needs of all patrons and visitors to public facilities.  I also observed that there remains a great deal of murkiness in the legal issues surrounding bathroom access and design.  Still, and despite all the societal and legal machinations currently churning over the issue of gender identity and use of public restroom facilities, I am heartened that the design and construction community may come to the rescue with a metaphorical plunger to push through the barriers of this clog, allowing a more free-flowing use of public restroom facilities.

In late 2017, I completed researching and drafting a comprehensive piece entitled: “Gender Identity and Public Restrooms: The Burgeoning Battle Over Public Restrooms” (“Burgeoning Battle”).  Originally prepared for an audience of real estate and construction law professionals in the Commonwealth of Pennsylvania, its objective was to present the roots of the issue, some of the earliest legal developments, the growing complexities of public bathroom accommodations in the 21st Century, several cases delving into the issue (including at least two very notable ones in Pennsylvania), and, perhaps, a more practical pathway forward to resolving the existing conflicts.  A copy of that article is attached, with all hyperlinked reference materials confirmed as of May 5, 2019.

Since that initial effort, I have continued to keep an eye on the topic, having been drawn to the challenges faced by not only those using these public restrooms, but also the owner/developers who operate these buildings and facilities, along with the designers who must be cognizant of the needs of those visiting their newly-designed or even newly-retrofitted creations.  What I have found is more and more legal wrangling over the sociopolitical elements of bathroom accommodations, as opposed to additional advancement of practical solutions to inclusive facilities.

Keep in mind that some of the earliest cases in this area began to emerge approximately five years ago.  As observed in the 2018 Edition of “The Complete Guide to Human Resources and the Law”, available from Wolters Kluwer (the “HR Guide”), “[s]tarting in mid-2015, the EEOC filed a series of suits calling for bathroom access for transitioning employees, and the use of pronouns employees prefer.”  See HR Guide at Chapter 34 (“Title VII”) at p. 34-49.  This is about the same time as the G.G. [Gavin Grimm] v. Gloucester County School Board case was filed.  It was also on the heels of one of several key Pennsylvania cases filed regarding public restroom access, Blatt v. Cabela’s Retail, Inc., which was filed in Mid-August of 2014.

Actually, since then, more than a dozen different cases have surfaced addressing the topic of gender-identity and access to public restrooms.  In addition, the Grimm case still continued to have bathroom time in 2019, even though Gavin Grimm had long since graduated from Gloucester High School.  On remand of this case, Judge Wright Allen, after noting both the earlier procedural history of the case, as well as the recent reassignment of the matter to her docket, went to the task of analyzing the Equal Protection Clause claim along with the Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681(a) (“Title IX”) claim raised by Gavin Grimm’s Amended Complaint.  The court did so, despite an earlier ruling from a previous judge dismissing the Title IX claim and despite the challenge by the School Board that the amended Title IX claim raised by Grimm was “virtually identical” to the claim already dismissed in an earlier proceeding before a different judge assigned to the case.  Grimm v. Gloucester County Sch. Bd., 302 F. Supp. 3d 730, 740 (E.D. Va. 2018).  Judge Wright Allen nevertheless concluded that revisiting Gavin Grimm’s Title IX claim was warranted:

First, there has been a significant change in the applicable law since the Motion to Dismiss the Title IX claim was initially considered in 2015. See Carlson [v. Boston Scientific Corp.], 856 F.3d [320,] 325 [(4th Cir. 2017)]; see also Bridget Coal Co. v. Dir., Office of Workers' Comp. Programs, U.S. Dep't of Labor, 669 F.3d 1183, 1192 (10th Cir. 2012) (noting that the emergence of a circuit split can justify reconsideration). The Sixth and Seventh Circuits have since held that excluding boys and girls who are transgender from the restrooms that align with their gender identity may subject them to discrimination on the basis of sex under Title IX, the Equal Protection Clause, or both. See Whitaker v. Kenosha Unified School Dist. No. 1 Board of Education, 858 F.3d 1034, 1049-51 (7th Cir. 2017); Dodds v. United States Dep't of Educ., 845 F.3d 217, 221 (6th Cir. 2016).

A number of district courts have also reached the same conclusion. See A.H. by Handling v. Minersville Area Sch. Dist., No. 3:17cv391, 2017 WL 5632662, at *1, *3-*7 (M.D. Pa. Nov. 22, 2017) (denying school district's motion to dismiss a transgender student's Title IX and Equal Protection Claims based on school district's bathroom policy "dictating that children must use the bathroom corresponding to the sex listed on the student's birth certificate"); Evancho v. Pine Richland Sch. Dist., 237 F. Supp. 3d 267, 288, 295 (W.D. Pa. 2017); Bd. of Educ. of the Highland Local Sch. Dist. v. US Dep't of Educ., 208 F. Supp. 3d 850, 865, 869, 871 (S.D. Ohio 2016). Recently, the District of Maryland denied a strikingly similar Motion to Dismiss a transgender student's Title IX and Equal Protection claims stemming from his school's policy of barring him from using the boys' locker room. M.A.B. v. Bd. of Educ. of Talbot Cty., 286 F. Supp. 3d 704, 711 (D. Md. 2018). Although these precedents are not binding upon this Court, the thorough analyses of analogous questions provided by the rulings proves [sic] persuasive.

Grimm, 302 F. Supp. 3d at 741-42.  This summary by Judge Wright Allen captured many of the cases reviewed initially in Burgeoning Battle and reaffirmed the potential risks of increased litigation and legal exposure surrounding the absence of brick and mortar accommodations that could have diffused this issue in the first instance.  Ultimately, in the matter involving Gavin Grimm, the District Court held that not only had Grimm stated a valid case under Title IX for “sex discrimination under a gender stereotyping theory,” but also, “because there were many other ways to project privacy interests in a non-discriminatory and more effective manner than barring Mr. Grimm from using the boys’ restrooms,” the Equal Protection Claim was also beyond dismissal.  Id. at 746-47 and 752.

Another development in this area that has immerged since Burgeoning Battle was originally published came from Pennsylvania.  While Doe v. Boyertown Area Sch. Dist. was originally filed in 2017, more attention came its way when the Third Circuit issued its initial decision on June 18, 2018, and then vacated that Order and Opinion by releasing a revised version of its decision on July 26, 2018, after a strongly worded dissent on a Sur Petition for Rehearing En Banc.  While this Sur Petition did result in the somewhat revised July 26, 2018 decision, it did not successfully place the matter before the entire Third Circuit.  It did, however, catch the attention of news reports, one observing that the case had exposed a split on the issues presented before the Third Circuit.

At the heart of the Boyertown case was the request for an injunction against a policy “allowing transgender students to use bathrooms and locker rooms that were consistent with the students’ gender as opposed to the sex they were determined to have at birth.”  Boyertown, 897 F.3d 518, 521 (3d Cir., July 26, 2018).  The three judge panel of the Third Circuit, both initially and then subsequently (via the revised decision), concluded the request for the injunction was not supported:

We agree that the appellants did not demonstrate irreparable harm would result from denying an injunction. The School District has provided adequate privacy facilities for the appellants to use during this litigation. Even if the appellants could otherwise succeed on one or more of their claims (and, as explained above, we do not suggest that they can), the single-user facilities ensure that no appellant faces irreparable harm in the meantime….

The Boyertown Area School District has adopted a very thoughtful and carefully tailored policy [inclusive of single-user restrooms and single-user showers, among other things] in an attempt to address some very real issues while faithfully discharging its obligation to maintain a safe and respectful environment in which everyone can both learn and thrive.

Boyertown, 897 F.3d at 537.

Notwithstanding the revised approach taken by Judge McKee, which largely consisted of the removal of a good deal of references to Whitaker, four other judges from the Third Circuit took issue with Judge McKee’s decision:

The revised panel opinion rightly acknowledges that a school policy addressing transgender students’ use of bathrooms and locker rooms is a matter of high importance to Boyertown and its students. Given that public importance and the obvious sensitivity of the issues involved, one would have thought that the opinion would address only the facts at issue and then only to the extent necessary. But the panel went beyond what was necessary when it chose to address Boyertown’s tangential argument that the school district would have run afoul of Title IX had it implemented a policy that confined transgender students to use of bathrooms and locker rooms designated for their biological sex. The revised panel opinion claims that “requiring transgender students to use single user or birth-sex-aligned facilities is its own form of discrimination.” Doe v. Boyertown Area Sch. Dist., No. 17- 3113, slip op. at 19 (3d Cir. July 25, 2018). In approving Boyertown’s decision to permit transgender students to use the bathrooms and locker rooms of their choice, the revised opinion implies that the school district would have been legally mistaken to do otherwise, saying Boyertown “can hardly be faulted for…adopting a policy that avoids the issues that may otherwise have occurred under Title IX.” Id. at 29. That suggestion is unnecessary and is certainly open to debate.

Boyertown, 897 F.3d at 516-17 (Jordan, K., dissenting)(footnotes omitted).  Then, the dissent made a broader and, in some respects, more challenging observation:

Reasonable people can and will disagree about the most appropriate way to address transgender students’ desire to select which bathroom or locker room facilities to use. It is a problem without a perfect solution, and we have not even begun to analyze those competing interests except for in this one specific fact circumstance presented for preliminary injunctive relief. Despite that, the panel’s dicta in the revised opinion continue to imply otherwise, and so are likely to handicap efforts by local school districts throughout this Circuit to thoughtfully address how to best handle the issue in their own communities. The law does not mandate only one outcome, as the panel opinion suggests.

Id. at 517.

Such a statement should be viewed as a call to action by those in the design and construction communities, along with the construction lawyer professionals called upon to advise them, whether they are public or private owners of public facilities or the architects and engineers tasked with designing these buildings and structures.  With all due deference to colleagues of the litigation bar as well as the esteemed jurists who have been sought out or asked to grapple with the contentions raised to date, the issue of bathroom accommodation in schools and other public places begs for solutions from a source outside of legislation, administrative rulings, and case determinations.  As observed in late April of last year by a consultant in this area: “OSHA recommends that (1) all single-occupancy units be designated gender-neutral; and (2) multiple-occupant facilities become gender-neutral restrooms with lockable single occupant stalls. Due to local regulation (some states require it by law), or by the choice of the business owner/employer, these kinds of restrooms are being installed more frequently.”  Additionally, the American Institute of Architects (the “AIA”) has noted that gender-neutral facilities are now starting to find support in building codes, such as the 2018 International Plumbing Code and other local code initiatives. Older building codes were at one time viewed as a source of conflict when designers/owners/developers attempted to confront the public bathroom accessibility issue with more tangible alternatives, such as more gender-neutral accommodating restroom designs. See Burgeoning Battle, p. 18-19.  It would appear that those codes are now starting to change, which may in turn allow for more innovation in design approaches.  Indeed, the AIA has recognized a design approach named “Stalled!,” which may alleviate some of these accessibility issues:

Open circulation encourages the masses to pass casually through a restroom with ease, re-absorbing the once-polarizing and isolating area into the public realm. European-style floor-to-ceiling stalls, which eliminate the “peek-a-boo” opening, form a perimeter around communal washing and grooming stations inspired by the fountains that anchor Roman piazzas.

          With the interests of caregivers, the disabled, and the transgender community better served, this design prototype is moving the conversation beyond gender. Even the inconvenience commonly experienced by parents taking their child of another gender to a public restroom is eliminated. And potty parity—the adequate supply of fixtures in recognition of the longer average bathroom use time among women—is further advanced with the elimination of gender-segregated facilities and with it, the long lines that often greet women in the restroom.

          “Stalled!” and other like-minded, centralized gender-neutral facilities will also reduce construction and maintenance costs.

          “Stalled! is meant as a catalyst of creativity….It’s a desegregated solution that offers designers a chance to transform public space, activating corridors into lounges.” In abolishing the binary, “architects can and should move toward a more diverse client model, one that embodies many different user groups.”

Just think, with support of these types of innovations, in all phases of project planning, programming and design, the issue of bathroom building in the 21st Century and beyond might not be such a battle after all.

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Edward B. Gentilcore

Michael Baker International, Inc., Pittsburgh, PA, Divisions 3 (Design), 10 (Transportation, Energy & Environment) and 11 (In-House Counsel)