Transgender Bathroom Issue -- Con Law Forum

[lawschoold0uche]

How would you approach a transgender issue on a con law exam? Federal/state law banning transgenders from using the bathroom.

[CLS2L]

On one hand, make arguments based on feelings. Rebut with bible scripture and other religious texts. Done

[criminaltheory]

From using the bathroom ever?

[Nebby]

Equal protection analysis a la Romer v. Evans.

[pancakes3]

did your prof write this question for your take-home?

[Teoeo]

Can't you just look up some of the most recent appellate cases in this area and look at the briefs filed by both sides?

edit: didn't see it was con-law, deleted Title VII / Title IX analysis.

[2807]

Equal protection analysis a la Romer v. Evans.

If arguing discrimination based on sex, which sex does the plaintiff claim when making the argument ?
Does the plaintiff-male say he is a female that cannot use the female restroom?
That seems a bit conclusionary.

So, one will have to prove they are the victimized-gender prior to then pleading maltreatment.

How exactly does one prove that?

[A. Nony Mouse]

Equal protection analysis a la Romer v. Evans.

If arguing discrimination based on sex, which sex does the plaintiff claim when making the argument ?
Does the plaintiff-male say he is a female that cannot use the female restroom?
That seems a bit conclusionary.

So, one will have to prove they are the victimized-gender prior to then pleading maltreatment.

How exactly does one prove that?

I’m not sure this is going to be a productive discussion bc it seems to be getting to the validity of the argument and we don’t need to go there in the on-topics.

[NoDayButToday]

I would try to approach is as a discrimination based on gender issue -> intermediate scrutiny / EP

Also, wasn't there a federal district court or appeals court that recently decided (like, last 2 weeks) that discrimination based on sexual orientation was gender-based discrimination? Because if so, I feel like you have a pretty good arg for extending that analysis to trans issues.

[Nebby]

Equal protection analysis a la Romer v. Evans.

If arguing discrimination based on sex, which sex does the plaintiff claim when making the argument ?
Does the plaintiff-male say he is a female that cannot use the female restroom?
That seems a bit conclusionary.

So, one will have to prove they are the victimized-gender prior to then pleading maltreatment.

How exactly does one prove that?

I don't know. Romer v. Evans wasn't about sex-based discrimination, and the argument against transgender bathroom bans relying on Romer wouldn't be either.

[lawschoold0uche]

did your prof write this question for your take-home?

No, just predicting a question on an upcoming exam because it has been such a hot topic.

I think that trying to fit it into gender discrimination would be a good route to go. But what about trying to fit it into the personal autonomy analysis in Obergefell?

[pancakes3]

did your prof write this question for your take-home?

No, just predicting a question on an upcoming exam because it has been such a hot topic.

I think that trying to fit it into gender discrimination would be a good route to go. But what about trying to fit it into the personal autonomy analysis in Obergefell?

i'm far from a con law scholar but public restroom isn't the privacy/substantive due process stuff. equal protection is more on point.