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Title VII Protects Transgender Police Officer’s Bathroom Use

Bradley Roberts, while presenting as a female, was hired by the Clark County School District as a police officer. For 17 years, that employment was without incident. However, in 2011, Mr. Roberts began physically identifying himself as male through his dress and grooming. He began to use the men’s bathroom at work. In response to complaints about his use of the men’s bathroom, the commanding officers met with Mr. Roberts. He let them know that he was transitioning to a male. They responded by directing him to use only the gender-neutral bathroom. Not directly responding to this instruction, Mr. Roberts submitted a letter that notified his superiors that he would be changing his name, that he wanted to be referred to with male pronouns, and that he would be complying with the male grooming code.

The school district responded with a “no” to all aspects of this letter, asserting that no changes would be made until he could provide documentation of a name and sex change. Thereafter, the school district allowed him to use his male name on an informal basis only. With respect to his bathroom usage, he was forbidden from using the men’s bathroom until he had documented evidence of a sex change. Until that time, Mr. Roberts was also prohibited from using the women’s bathroom and was only allowed to use the gender-neutral bathroom.

Title VII does not expressly prohibit “gender” discrimination but it does prohibit “sex” discrimination. The Ninth Circuit Court of Appeals, as well as several other circuits, have held that “sex” discrimination includes stereotypes “because of sex.” Sex stereotypes include gender identity. Clark County School District banned Mr. Roberts from the women’s bathroom because he no longer behaved like a woman. It banned him from the men’s bathroom because he was biologically female. The Nevada federal district court deciding this case found Mr. Roberts had been treated differently because of his biological sex and his gender identity, both reasons arising out of his transgender status. This differential treatment was held to be sex discrimination in violation of Title VII.