Abstract

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
federal funding. In two separate lawsuits, 20 states have challenged the legitimacy of this
interpretation.

This Article examines the current court battles over transgender bathroom and lockerroom 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 of federal 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.

Publication Citation

Catherine Jean Archibald, Transgender Bathroom Rights, 24 Duke Journal of Gender Law & Policy 1-31 (2016)
Available at: http://scholarship.law.duke.edu/djglp/vol24/iss1/1