Thursday, April 16, 2009

Ninth Circuit Affirms Ruling Against Transgender Plaintiff in Bathroom Discrimination Case

The Ninth Circuit Court of Appeals affirmed a lower court's ruling that dismissed plaintiff Rebecca Kastl's lawsuit against Maricopa County Community College. Kastl, who is transsexual, was a MCCC student and instructor, and sued the college in 2002 after it banned her from using the women's restroom and subsequently decided not to renew her contract. Kastl argued that these decisions constituted unlawful sex discrimination under the Equal Protection Clause, Title VII, and Title IX, but the lower court dismissed her suit. In affirming that decision, the Ninth Circuit acknowledged that it recognizes that, under the Price Waterhouse doctrine, discrimination against a transgender plaintiff for failing to conform to gender stereotypes is a form of sex discrimination prohibited by law. However, the court determined that the college did not ban Kastl from the women's restroom for discriminatory reasons, but rather, for permissible "safety concerns." Since Kastl did not allege that those safety concerns were actually pretext for a discriminatory motive, she did not make out a sufficient case for sex discrimination, the court reasoned.

Unfortunately, it appears that the district court's decision, and as a result, the parties' briefs on appeal, focused on the first question -- whether and under what theory Kastl is protected under antidiscrimination law at all, and not the "safety concern" alternative rationale offered by the college. I could not find where or whether the courts examined or the parties briefed the safety issue, which did not receive more than a sentence in the appellate court's opinion. It certainly seems arguable (if not obvious) that safety is a pretext for the college's discomfort with the plaintiff's transsexuality, especially if there is no evidence that the plaintiff's presence in the women's bathroom actually did threaten the safety of other women who were there. As a result, I am disappointed that the court didn't explain this aspect of the decision more fully. The decision reads as if the court -- like Maricopa County Community College, perhaps? -- is trying to avoid having to engage in any meaningful analysis over the hard and uncomfortable questions raised by the case.

Decision: Kastl v. Maricopa County Community College District, 2009 WL 990760 (9th Cir. Apr. 14, 2009).