Transsexual Officer Wins Discrimination Lawsuit Over Bathroom Use

The Clark County, Nevada School District hired Bradley Roberts as a campus monitor in 1992. At that time, he was known as Brandilyn Netz. In 1994, Roberts moved to a police officer position. Roberts held that position without incident for seventeen years.

In 2011, Roberts began dressing for work like a man, grooming like a man, and identifying himself as a man. He also started using the men’s bathroom at work. When others complained that a woman was using the men’s bathroom, Roberts confirmed that it was him and explained that he was transgender and in the process of transitioning into a man. He also told them that he wanted to be known as Bradley Roberts and use the men’s bathroom.

Roberts’s commanding officers told him that he could not use the men’s rooms and that he should confine himself to the gender-neutral restrooms “to avoid any future complaints.” Meetings and memos followed, and the District eventually agreed that Roberts could informally use a man’s name for the time being, but that “all official and formal documents” would contain his female name until he obtained a court order and a name-change packet from human resources. The District also decided that Roberts was banned from the men’s restrooms until he had a documented sex change, and told Roberts that he was required “to use a gender-neutral or single occupancy restroom,” not the female restrooms.

Roberts eventually sued, alleging that the Department subjected him to discrimination, harassment, and retaliation, and he asserts six claims: gender discrimination and harassment under Title VII; gender-identity expression and harassment under Nevada’s Anti-Discrimination Statute, and retaliation under both Title VII and the Nevada statute.

While the case was ongoing, Roberts filed for partial summary judgment in his favor on the “bathroom ban” issue. A federal court judge ruled in Roberts’ favor.

The Court began its opinion with a recap of how Title VII applies to gender identity: “Our understanding of Title VII’s prohibition against discrimination based on sex has evolved considerably since the statute’s enactment in 1964. When Title VII was amended in 1972, courts understood the phrase ‘because of sex’ to prohibit only discrimination that impeded women from attaining ‘equal footing with men.’ This had the unfortunate effect of allowing employers to offer health-benefit packages that denied coverage for pregnancy-related expenses.

“When the Supreme Court decided Price Waterhouse v. Hopkins in 1989, it broadened the notion of discrimination ‘because of sex’ under Title VII. Hopkins was a senior manager up for partnership at a national accounting firm. Everyone agreed that Hopkins was great at her job, but some of the partners disliked the fact that she did not act like ‘a lady.’ Hopkins was told that she should not use profanity, that she ‘overcompensated for being a woman,’ and that her chances for partnership would be improved if only she could ‘walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry.’

“The High Court held that Title VII prohibited Hopkins’s employer from making employment decisions based on these sorts of gender stereotypes. The Court explained that Title VII does not operate merely to keep men and women on an equal footing, it protects people from all forms of sex stereotyping. It noted that ‘Congress’s intent to forbid employers to take gender into account in making employment decisions appears on the face of the statute,’ and these words mean that gender must be irrelevant to employment decisions.

“An unpublished decision from the Ninth Circuit leaves little doubt which way the circuit is leaning in transgender Title VII cases. The Ninth Circuit has reasoned that it is unlawful to discriminate against a transgender (or any other) person because he or she does not behave in accordance with an employer’s expectations for men or women. And it found that ‘gender stereotyping is direct evidence of sex discrimination prohibited by Title VII.’ The EEOC has also held that intentional discrimination against a transgender person ‘is, by definition, discrimination based on sex, and such discrimination therefore violates Title VII.’

“Direct evidence establishes the Department’s discriminatory intent here. It banned Roberts from the women’s bathroom because he no longer behaved like a woman. This alone shows that the school district discriminated against Roberts based on his gender and sex stereotypes. And the Department also admits that it banned Roberts from the men’s bathroom because he is biologically female. Although the District contends that it discriminated against Roberts based on his genitalia, not his status as a transgender person, this is a distinction without a difference here. Roberts was clearly treated differently than persons of both his biological sex and the gender he identifies as – in sum, because of his transgender status.

“The school district contends that Roberts was not treated differently than similarly situated employees because his anatomy made him a female, and other females were not permitted to enter the men’s restroom. But Roberts was not allowed to use the female bathroom either – so he was treated differently than other females.”

Roberts v. Clark County School District, 2016 WL 5843046 (D. Nev. 2016).