Over on TranscendGender, Amber posted a blog about her transition at work and the dilemma of how to deal with the private businesses she visits as part of her job. In particular, she wondered how to deal with the question of which bathroom to use at places where she is known from before her transition. As we all know, bathroom access is one of the most sensitive issues these days in the battle for equal treatment for all transgender people, and one which our opponents are exploiting by saying that prohibiting discrimination against trans people in allowing access to public accommodations means the the dreaded, and clearly perverted, “man in a dress” will use these laws as an excuse to go into women’s restrooms and abuse every woman who enters, especially little girls. (The truth, of course, is that there is nothing to prevent that from happening right now, so these laws change nothing in that regard.) In her comment to Amber’s blog, Renee pointed out that private businesses are private property and that the owner can exclude anyone they wish by invoking laws against trespassing. Her comment, however, didn’t factor in the effect of public accommodations laws. So, I responded with the following:
While what Renee said about private businesses is basically true, they do not, in fact, have unlimited discretion to exclude people. Virtually every state has a law that prohibits sex, race and other discrimination in public accommodations. Thus, businesses like theaters, shopping malls, retail stores, hotels, and restaurants that offer their goods and/or services to the public are subject to these restrictions even on their private property. Moreover, both state and federal courts have held that discrimination because a person doesn’t fit gender stereotypes, such as a butch lesbian or a fem gay man or even a trans woman or man, is illegal sex discrimination. Here in Arizona, a friend of mine filed a civil rights complaint with the state Attorney General’s office against a night club for banning her and all other trans women because some women were complaining about their use of the women’s restroom. The AG accepted and investigated the complaint as a valid allegation of sex discrimination; in other words, they accepted this interpretation of Arizona’s law. Eventually, the complaint was settled by agreement (the nightclub owner dropped the ban and put a gender neutral sign on a preexisting single stall bathroom), so there is no administrative or judicial ruling affirming that this was, in fact, illegal sex discrimination under Arizona law. Nonetheless, this remains a valid basis for asserting our rights if a private business that qualifies as a “public accommodation” treats us differently because we aren’t as masculine or as feminine as they think we should be.
The ban on sex discrimination in access to public accomodations applies to restrooms, just as it does to every other part of a business open to the public. Many people believe that there are laws stating that only men can use the men’s room and vice versa. In fact, as far as I know, no state has such a law, although some cities may. Absent such a law, which may be subject to constitutional challenge, the business cannot discriminate against anyone in allowing access to restrooms based on their sex; in other words, women can legally use the men’s room and vice versa.
When Amber goes to one of these businesses as a contractor, instead of a customer, her status is different and the public accommodations protections may not apply to her on that visit. If, however, she comes back as a customer, e.g., to see a movie, they cannot discriminate against her because she is trans under this theory.
A final caveat: Although many courts have accepted this interpretation of sex discrimination statutes, others have not and instead have held that it does not violate such laws to exclude someone because she or he is trans. Most of those cases predate a 1989 U.S. Supreme Court decision (Price Waterhouse v. Hopkins, 490 U.S. 228) holding that discrimination based on gender stereotypes violates the federal ban on sex discrimination in employment. The current, although still somewhat uncertain, trend in the case law is to accept and apply this theory to discrimination against trans women and men. Of course, the adoption of local, state and federal laws explicitly banning discrimination on the basis of gender identity or expression eliminates the need to rely on this theory and makes our protections much more secure.
In other words, although our protection against discrimination under existing law is uncertain, we are not wholly without remedy when we are unfairly treated because of who we are.