24 Duke J. Gender L. & Pol'y 1 (2016-2017)

handle is hein.journals/djglp24 and id is 1 raw text is: 










Transgender Bathroom Rights


                            CATHERINE JEAN ARCHIBALD*

     No State shall ... deny to any person within its jurisdiction the equal protection of the
     laws.
         - Fourteenth Amendment   to the United States Constitution, Section 1
     No person ... shall, on the basis of sex, . . . be subjected to discrimination under any
     education program or activity receiving Federal financial assistance.
         - Title IX of the Education Amendments of 1972
     A recipient may provide separate toilet, locker room, and shower facilities on the basis of
     sex ....
         - Implementing  regulation of Title IX of the Education Amendments of 1972
         at 34 C.F.R. § 106.33


      After winning the right to same-sex marriage in all 50 states in June, 2015, the LGBT
community is once again battling in court for its rights, this time for the right of
transgender  people to use bathrooms and locker rooms that match their gender identity. In
its Dear  Colleague  Letter on  Transgender  Students,  the Federal  Government   has
recently interpreted federal law as requiring that transgender students be permitted to use
bathroom  and locker rooms that correspond with their gender identity in schools receiving
federalfunding.  In two separate lawsuits, 20 states have challenged the legitimacy of this
interpretation.
      This Article examines the current court battles over transgender bathroom and locker
 room rights and discusses possible outcomes of the most contentious legal issues in dispute.
 These issues include: the procedures  used by  the Federal Government in issuing its
 interpretation; the substantial legitimacy of the interpretation; and the Constitutional
 authority of the Federal Government to issue its interpretation. The Article concludes that
 courts should uphold the Federal Government's recent interpretation offederal civil rights
 law because  the Federal  Government's   interpretation is a reasonable interpretation,
 lawfully issued, that mirrors the best medical and psychiatric practices for the protection
 and inclusion of a vulnerable group.




 Copyright @ 2016 by Catherine Jean Archibald
    *   Catherine Jean Archibald is an Assistant Professor of Law at the University of Detroit Mercy
 School of Law. She received an A.B. from Princeton University in 2000, a J.D. from Michigan State
 University College of Law in 2007, and an LL.B. from the University of Ottawa Faculty of Law in 2008.
 The author is grateful for the support and comments from Professors Erin Archerd, Cara Cunningham
 Warren, Lee Goldman, Karen Henning, Gary Maveal, Patrick Meyer, and Julie St. John.


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