November 2015 - Parks & Recreation - 38

L AW R E V I E W

Applying the rational basis test,
the federal district court concluded " UPJ's policy of segregating its
bathroom and locker room facilities
on the basis of birth sex " was " substantially related to a sufficiently
important government interest. "
Specifically, the court found " UPJ
explained that its policy is based on
the need to ensure the privacy of its
students to disrobe and shower outside of the presence of members of
the opposite sex. "
Moreover, the court noted this particular " justification has been repeatedly upheld by courts. " Further, the
court found discrimination on the
basis of sex under these particular
circumstances was permissible under
the Constitution.
Separating students by sex based on biological considerations - which involves
the physical differences between men and
women - for restroom and locker room
use simply does not violate the Equal Protection Clause...
While detrimental gender classifications by government often violate the Constitution, they do not always do so, for the
reason that there are differences between
males and females that the Constitution
necessarily recognizes.
Biological Sex
In his complaint, Johnston had alleged UPJ's refusal to permit him
access to facilities consistent with his
male gender identity constituted sex
discrimination against him as a male
transgender individual. The federal
district court disagreed.
As noted by the federal district
court, " courts have defined the term
'sex' in the context of the Equal Protection Clause " as " the biological sex
assigned to a person at birth. " According to the court, " sex, like race
and national origin, is an immutable
36 Parks & Recreation

characteristic determined solely by
the accident of birth. " Accordingly,
within the context of federal civil
rights law, the court found the prohibition against sex discrimination
" in its plain meaning, implies that
it is unlawful to discriminate against
women because they are women and
against men because they are men. "
As a result, in the opinion of the
court, federal civil rights law does
" not outlaw discrimination against
a person who has a sexual identity
disorder, i.e., a person born with a
male body who believes himself to
be female, or a person born with a female body who believes herself to be
male. " In other words, " a prohibition
against discrimination based on an
individual's sex is not synonymous
with a prohibition against discrimination based on an individual's sexual identity disorder or discontent with
the sex into which they were born. "
The federal district court also
noted that courts have " consistently upheld statutes where the gender
classification is not invidious [i.e.,
discriminates unjustly], but rather
realistically reflects the fact that the
sexes are not similarly situated in certain circumstances. "
In this particular instance, the
court noted that Johnston claimed
in his complaint that he is a " male "
while also admitting in his complaint that he " was assigned the sex
of 'female' at birth. " Further, the
court found Johnston had not alleged that he had " undergone a sex
change, " specifically " any kind of
sex reassignment surgery. "
While Johnston might " identify his gender as male, " the court
found Johnston's " birth sex " was
admittedly female. In the opinion
of the federal district court, the fact
that Johnston was " born a biolog-

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ical female " was " fatal " to his sex
discrimination claim.
Regardless of how gender and gender
identity are defined, the law recognizes
certain distinctions between male and female on the basis of birth sex. Thus, even
though plaintiff is a transgender male,
his sex is female, a fact alleged in plaintiff 's complaint and a fact that has legal
significance in light of plaintiff 's discrimination claim.
Plaintiff alleges that he was assigned
the sex of female at birth. To further this
point, plaintiff alleges that he did not
become aware of his male gender identity until he was 9, and he did not start
presenting as a male until sometime later, around the time he matriculated as a
student at UPJ.
While Johnston had " held himself
out as 'male' at all relevant times, "
the federal district court also noted
that Johnston had stated he was female when he applied to UPJ. Moreover, the court found Johnston had
" failed to provide the school with
requested documentation, consistent with UPJ's policy, to change the
school records to reflect that his sex is
male rather than female. "
In light of such facts, the federal
district court determined that Johnston had " failed to allege that he was
discriminated against because of his
sex. " Having found Johnston had
" failed to state a cognizable claim
for relief under the Equal Protection
Clause of the Fourteenth Amendment, " the federal district court dismissed Johnston's complaint against
the university.
James C. Kozlowski, J.D., Ph.D., is an
attorney and Associate Professor in the
School of Recreation, Health and Tourism at
George Mason University (jkozlows@gmu.
edu). Webpage with link to law review
articles archive (1982 to present): http://
mason.gmu.edu/~jkozlows.

November 2015 - Parks & Recreation

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