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    Transgender Rights in Wisconsin

    Awareness of the legal status and rights of transgender persons is vital for Wisconsin lawyers, whether their clients are individuals, businesses, or governmental entities.

    Joseph S. Diedrich

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    Ash Whitaker is a male. He is also transgender, meaning he was assigned female at birth. In his teens, Ash began grooming and dressing in a masculine manner, using male pronouns, and taking hormones. He also used the boys’ restroom at his Kenosha high school – at least until school administrators made him stop, despite peers and school staff members accepting his male identity.

    The school district required Ash to use either the girls’ restroom, which contradicted his gender identity, or a restricted single-occupancy restroom at the other side of campus, which drew unwanted attention and made him late for class. To limit his use of school restrooms, Ash began drinking very little water, even though he needed large amounts to stave off symptoms of a diagnosed fainting disorder. As a result of the restroom restrictions, Ash experienced heightened levels of anxiety, depression, and suicidal thoughts. When negotiations with administrators proved fruitless, Ash sued the Kenosha Unified School District, alleging violations of Title IX of the Civil Rights Act and the Equal Protection Clause of the Fourteenth Amendment.1

    Ash is one of approximately 60,000 transgender and gender-nonconforming individuals living in Wisconsin.2 Broadly defined, the term transgender refers to individuals whose gender identity – their inner sense of being male, female, or neither – differs from their anatomical sex assigned at birth. (Cisgender refers to people whose gender identity and sex assigned at birth are congruent.) Being transgender is a matter of diversity, not pathology. That said, some transgender individuals also experience distress due to the incongruity between their gender identity and physical body. At an acute level, this distress becomes a diagnosable mental health condition known as “gender dysphoria.”3

    In Wisconsin and across the United States, transgender individuals experience discrimination and inequality at alarming rates.4 Yet at the same time, public awareness of gender identity and the transgender community continues to rise. This prompts a question relevant to all lawyers, judges, and legal observers: How, if at all, does the law interact with and protect the rights of transgender individuals?

    Answers to that question are starting to materialize. Reaching nationally and focusing on Wisconsin, this article surveys the current and evolving state of the law – constitutional, statutory, and common; federal, state, and local – on various issues that uniquely affect transgender individuals. Courts, other governmental bodies, private entities, and individuals are being forced to address novel legal questions involving the rights of transgender and gender-nonconforming people. Defining the existence and nature of these rights appears to be “the next civil rights frontier ….”5

    The Whitaker Decision

    In 2017, the Seventh Circuit decided Ash Whitaker’s much-watched lawsuit, on appeal from the U.S. District Court for the Eastern District of Wisconsin.6 The case involved three of the most discussed and most litigated transgender-rights topics: restroom use, Title IX, and the Equal Protection Clause.

    Joseph S. Diedrichcom Joseph.Diedrich huschblackwell Joseph S. Diedrich, U.W. 2017 summa cum laude, Order of the Coif, is an associate at Husch Blackwell LLP, Madison, focusing on commercial and constitutional litigation and appeals.

    The relevant portion of Title IX provides that no person “shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any educational program or activity receiving Federal financial assistance ….”7 The statute does not define “sex,” nor does it expressly mention gender identity or transgender status. To interpret the term, the Whitaker court relied on employment cases discussing the prohibition on sex discrimination under Title VII, another fertile ground for transgender-rights litigation (see discussion below).

    The Seventh Circuit ultimately concluded that the Kenosha Unified School District violated Title IX when it enforced a policy “requir[ing] an individual to use a bathroom that does not conform with his or her gender identity ….”8 The policy, said the court, “punishe[d]” transgender individuals for their “gender non-conformance” and “subject[ed] Ash, as a transgender student, to different rules, sanctions, and treatment than non-transgender students ….”9 The court rejected the school district’s argument that Ash had failed to make use of readily available alternatives and dismissed the district’s privacy argument as “based upon sheer conjecture and abstraction.”10

    Applying similar reasoning to Ash’s equal protection claim, the Seventh Circuit ruled that the restroom policy, which “cannot be stated without referencing sex,” was a sex-based classification.11 Courts subject sex-based classifications to intermediate scrutiny, meaning the school district had to show that the policy’s “classification serve[d] important governmental objectives and that the discriminatory means employed are substantially related to the achievement of those objectives.” This it failed to do.12

    By declaring it a sex-based classification, the Whitaker court avoided having to decide whether the restroom policy also discriminated on the basis of “transgender status,” and if so, what level of scrutiny to apply. In dicta, however, the court indicated that when the time comes, it will consider applying intermediate scrutiny to classifications based on transgender status or gender identity.13 Several other courts around the country have already done so.14

    A discriminatory culture negatively impacts employee morale, increases turnover, squelches diversity's positive effects, and, in turn, strikes at the bottom line – not to mention litigation costs associated with discrimination lawsuits.

    In the end, the Seventh Circuit affirmed the district court’s preliminary injunction and enjoined the school district from “(1) denying Ash access to the boys’ restroom; (2) enforcing any written or unwritten policy against Ash that would prevent him from using the boys’ restroom while on school property or attending school-sponsored events; (3) disciplining Ash for using the boys’ restroom while on school property or attending school-sponsored events; and (4) monitoring or surveilling Ash’s restroom use in any way.”15 The school district sought review in the U.S. Supreme Court but then settled the case before a decision was reached on its certiorari petition.16

    Whitaker underscores not only the disparate treatment many transgender individuals experience but also an emerging judicial awareness of that experience. The case lies at a vexing intersection in this “next civil rights frontier” – one where inequality is noticeable enough for people to care but so new to the consciousness that legal and societal standards remain uncertain.

    Other Constitutional Rights

    In addition to those under the Equal Protection Clause, the U.S. Constitution may offer other protections for transgender individuals. Drawing from the U.S. Supreme Court’s ever-murky substantive-due-process case law, multiple scholars have hypothesized a constitutional right to “gender autonomy” – that is, a right “of self-determination of one’s gender, free from state control, and the right to self-identify as that gender, free from state contradiction.”17

    Whether descending from right-to-privacy cases “promot[ing] self-determination of private decisionmaking,” right-to-privacy cases protecting “sensitive information from government interference,”18 or the Court’s repeated refrains about individual dignity and the freedom to pursue one’s destiny,19 the existence of a liberty right to gender autonomy seems at least plausible. The Court, for its part, might already agree. For example, Justice Kennedy wrote in Obergefell v. Hodges that “[t]he Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity.”20

    Although federal constitutional rights rise “from a better informed understanding of how constitutional imperatives define a liberty that remains urgent in our own era,”21 those rights typically operate only against state actors. Because it lacks an analogous limitation, the Wisconsin Constitution, article I, section 1, can theoretically reach further with its guarantees of “equality” and “inherent rights.” Yet for better or for worse, the Wisconsin Supreme Court interprets those guarantees parallel to federal constitutional equal protection and due process rights.22

    Employment

    In a recent survey, 82 percent of transgender Wisconsinites reported experiencing harassment or mistreatment in the workplace. Significant numbers also reported that they were discriminated against based on their gender identity: 54 percent were not hired, 34 percent lost a job, and 22 percent were denied a promotion.23 To vindicate their rights in the employment context, transgender individuals have increasingly relied on anti-discrimination statutes, albeit with limited success.

    At the federal level, Title VII of the Civil Rights Act prohibits discrimination based on “race, color, religion, sex, or national origin.” The scope of the term “sex” in that list remains an open question. Does it apply to discrimination based on gender identity?

    In 1984 in Ulane v. Eastern Airlines, the Seventh Circuit answered that question “no.” The district court in Ulane found that Eastern Airlines discharged Ulane because she was a “transsexual,” and that the discrimination violated Title VII. While “not condon[ing] discrimination in any form,” the Seventh Circuit reversed, holding that Title VII does not protect transgender individuals. Applying a “biological” understanding of sex, the court reasoned that “[t]he phrase in Title VII prohibiting discrimination based on sex, in its plain meaning, implies that it is unlawful to discriminate against women because they are women and against men because they are men.”24 Ulane has since been heavily criticized and today its precedential validity is dubious.25

    Other than 2015 Wis. Act 16, regulating transportation network services, the Wisconsin Legislature has been relatively quiet on transgender rights as of late.

    While it has not squarely addressed transgender discrimination, the U.S. Supreme Court interprets Title VII as applying more broadly than to just sex assigned at birth.26 In Price Waterhouse v. Hopkins, for example, the Court held that adverse employment actions based on gender stereotypes – such as the discharge of Ann Hopkins because she didn’t dress, talk, and walk femininely – are actionable as sex discrimination under Title VII.27 Building on this gender-stereotyping rationale, some federal circuit courts have concluded that sex discrimination under Title VII or the Equal Protection Clause includes discrimination against transgender employees.28 In the Seventh Circuit, this reasoning directly challenges Ulane, because “[b]y definition, a transgender individual does not conform to the sex-based stereotypes of the sex that he or she was assigned at birth.”29

    In its 2017 en banc Hively v. Ivy Tech Community College of Indiana decision, the Seventh Circuit held that employment discrimination based on sexual orientation is actionable as sex discrimination under Title VII. The Hively majority interpreted the term “sex” to encompass more than just sex assigned at birth. As Judge Posner explained in concurrence, “today ‘sex’ has a broader meaning than the genitalia you’re born with.”30

    By expanding the reach of “sex” in Title VII, Hively arguably contradicts Ulane and provides a pathway in the Seventh Circuit for litigants to argue that Title VII also prohibits discrimination based on gender identity. Indeed, at least one district court within the circuit has ruled that “[b]ased upon Whitaker and Hively, … discrimination based upon a person’s transgender status is a violation of Title VII.”31

    By contrast, the current position of the U.S. Department of Justice (DOJ) comports with Ulane. In an October 2017 memo reversing an earlier Obama-era policy, the DOJ stated that “sex” in Title VII “is ordinarily defined to mean biologically male or female” and that the law “does not prohibit discrimination based on gender identity per se.”32

    Even if Title VII bars discrimination based on gender identity, the federal law reaches only so far. Certain employers, including those with fewer than 15 employees, are exempt from its requirements.33 State and local laws often fill this gap.

    At the state level, neither the Wisconsin Fair Employment Act nor the civil service statutes explicitly address discrimination based on gender identity.34 Some other states, by contrast, have enacted statutes that prohibit such employment discrimination, either by adding “gender identity” to a list of protected classes or by defining “sex” to include gender identity.35 A few Wisconsin municipalities have enacted similar ordinances (see discussion below).

    Apart from anti-discrimination laws, employers have significant incentives to voluntarily refrain from discriminating against transgender individuals – or any protected class. Word gets around, and an employer’s reputation can have a profound effect on current and prospective employees and consumers. A discriminatory culture negatively impacts employee morale, increases turnover, squelches diversity’s positive effects, and, in turn, strikes at the bottom line – not to mention litigation costs associated with discrimination lawsuits.36 On the other hand, “[l]ower employee turnover and higher employee satisfaction due to a nondiscriminatory environment can boost productivity and can ultimately yield higher profit margins for companies.”37

    To that end, 82 percent of Fortune 100 companies have nondiscrimination policies that explicitly address discrimination based on gender identity.38 Besides unilateral policies, some employers can also address transgender discrimination in collective bargaining agreements; at least one commentator has suggested that such discrimination is a mandatory bargaining subject.39

    Healthcare

    As mentioned, many transgender individuals suffer from gender dysphoria. Those diagnosed with gender dysphoria often experience a “strong desire to be rid of [their] primary and/or secondary sex characteristics” and “clinically significant distress or impairment in social, occupational, or other important areas of functioning.”40 Treatments are available to alleviate gender dysphoria, including counseling and psychotherapy, changes in gender expression and role, hormone therapy, gender confirmation surgery, and potentially other accommodations.41 The World Professional Association for Transgender Health (WPATH) has developed comprehensive standards of care for treating gender dysphoria that have been recognized by medical associations and courts alike.42

    As in other areas of their lives, transgender individuals experience discrimination in healthcare, including when accessing basic healthcare unrelated to gender transition. Eighteen percent of transgender Wisconsinites have been refused medical care due to their gender identity or expression, and 18 percent have postponed necessary medical care because of discrimination.43 The American Medical Association and the American Psychological Association have recognized this discrimination and resolved to combat it.44

    As public awareness of gender dysphoria rises, access to healthcare improves. Medicare now covers the full gamut of medically necessary gender dysphoria treatments on a case-by-case basis.45 Many employers, in tandem with private health insurers, offer employees gender-medicine coverage. A small but growing minority of states has enacted laws barring gender-transition exclusions from Medicaid and private health insurance coverage; Wisconsin is not yet one of those states.46 The Affordable Care Act, like Titles VII and IX, bans discrimination in healthcare on the basis of “sex” but not gender identity specifically, leaving courts and other interpreting bodies to decide whether it also includes discrimination based on gender identity.47

    Incarceration

    Transgender individuals are incarcerated at a rate more than five times that of the general population: whereas 3 percent of the general population has spent time in prison, 16 percent of transgender persons have. The unique needs of transgender and gender dysphoric inmates, often misunderstood or ignored by prison officials, present complex administrative and legal issues.48

    Among these issues is where to house transgender inmates.49 The Wisconsin Department of Corrections (DOC), like all correctional systems in the United States, segregates male and female inmates,50 presumptively based on anatomy. Thus, even though a transgender inmate may identify as a woman, appear feminine, and be taking feminizing hormones, so long as she has male genitalia she will be housed in a men’s prison.51 Correctional systems have so far been reluctant to house inmates according to gender identity.52 For safety reasons, some correctional systems – but not the DOC – have placed transgender inmates in administrative segregation,53 but that risks “new or exacerbated mental health disturbances, dangerous and antisocial behavior, … chronic and acute health disorders[,]” and difficulty reintegrating into the general prison population.54

    Beyond housing, correctional systems have begun to develop special policies and procedures related to transgender inmates, including those for pat and strip searches, showering accommodations, and allowed property.55 For instance, the DOC permits male-to-female transgender inmates to purchase certain feminine eyewear, undergarments, and hygiene products from the canteen.56 The DOC also follows the federal Prison Rape Elimination Act requirements for reducing sexual assault in prisons, a risk to which transgender inmates are particularly susceptible.57 Transgender inmates and correctional systems also face other challenges, many of which are beyond the scope of this article.

    Public Accommodations

    Transgender individuals in Wisconsin experience discrimination at both government-provided and privately owned public accommodations. In a recent survey, one-quarter of respondents reported harassment by police officers, and 52 percent reported being “verbally harassed or disrespected in a place of public accommodation or service, including hotels, restaurants, buses, airports and government agencies.”58

    It is in the area of public accommodations that Wisconsin has enacted its first and only explicit ban on gender-identity discrimination. 2015 Wis. Act 16, codified primarily in Wis. Stat. chapter 440, creates a regulatory framework for “transportation network services” like Uber and Lyft. Section 440.45 of the Wisconsin Statutes requires companies operating in Wisconsin to “adopt a policy of nondiscrimination” and commands drivers to “not discriminate against any passenger” on the basis of membership in several enumerated protected groups, including “gender identity.” The legislative history of 2015 Wis. Act 16 provides no insight as to why the legislature chose to explicitly include the phrase “gender identity” in the law, indicating that the inclusion was not contentious – a reflection of the growing acceptance of transgender individuals in society.59

    Impatient for the state to act, some Wisconsin municipalities have passed ordinances prohibiting discrimination based on gender identity.

    While Wis. Stat. section 440.45 likely signals the future of nondiscrimination provisions, the explicit mention of gender identity in only one narrow area of the law could have unintended consequences. Its singular presence but otherwise general absence could lead to narrow judicial interpretations of other existing nondiscrimination statutes. Indeed, Wisconsin courts might interpret another nondiscrimination provision that lists only “race, creed, sex, or national origin” – such as Wis. Stat. sections 194.01(1) and 194.025, regulating traditional taxis – to exclude gender identity as a protected class.60

    Under current state statutes, transportation network services are the only public accommodations explicitly prohibited from discriminating based on gender identity.61 But that does not necessarily mean that transgender discrimination in public accommodations is otherwise legal. Wherever “sex” appears as a protected class in an anti-discrimination law, Wisconsin courts could interpret that term to include gender identity or expression. And perhaps more importantly, as discussed above, businesses offering public accommodations have increasingly strong market and reputational incentives to avoid discriminating on the basis of gender identity.

    Other State and Local Law

    Other than 2015 Wis. Act 16, regulating transportation network services, the Wisconsin Legislature has been relatively quiet on transgender rights as of late.62

    In the 2015-16 session, both houses of the legislature considered bills about restrooms in public schools. The bills prohibited a “member” of one “sex” from using a restroom designated for use by the other sex. That is, they prevented transgender students from using the restroom congruent with their gender identity. The bills also required school boards to make “reasonable accommodations” to permit transgender students to use single-occupancy restrooms, with the Senate version permitting school boards to designate gender-neutral restrooms. Both bills failed.63

    Another Assembly proposal from the previous session would have required the Department of Public Instruction to develop a model policy for transgender students. It also would have required every school board to adopt a transgender-student policy. This bill also failed.64

    In the current legislative session, two sets of companion bills related to transgender individuals are pending. The first set prohibits mental health providers from practicing conversion therapy – defined as “any practice that seeks to change an individual’s gender expression, gender identity, or sexual orientation” – on minors. Although primarily an initiative of Democrats, the Assembly version of the bill has garnered limited bipartisan support.65

    The second set of bills amends several existing Wisconsin anti-discrimination statutes to expressly prohibit discrimination based on gender identity or gender expression in employment, housing, public accommodation, public education, insurance coverage, and other regulated areas.66 The bills add “gender identity” and “gender expression” as protected classes, in addition to sex, race, age, and so on. If these bills are enacted, Wisconsin would join a minority of states that consider gender identity or transgender status to be a prohibited basis of discrimination.67 Yet considering that the 2017-18 session is nearly over and that neither of the pending bills has been set for a public hearing, it is safe to conclude that the legislation will fail. Given the ever-increasing visibility of transgender-rights issues, though, it is likely that similar bills will resurface in the next session.68

    Impatient for the state to act, some Wisconsin municipalities have passed ordinances prohibiting discrimination based on gender identity. These include Dane County, Milwaukee County, and the cities of Appleton, Cudahy, Janesville, Madison, and Milwaukee.69 The ordinances vary in scope; one of the broadest, Madison’s, prohibits discrimination based on gender identity in employment, housing, and public accommodations.

    Although a complete discussion is beyond the scope of this article, it is worth noting that not all transgender-rights proponents support using anti-discrimination laws to protect the rights of transgender individuals. While many do, of course, others point out that “[a]nti-discrimination laws have long been criticized for failing to deliver their egalitarian promise and create real change in the social status of those they protect.”70

    Specifically, some people question whether anti-discrimination laws “serve[] underprivileged gender variant individuals or merely redefine[] the borders of gender to include very specific configurations of gender variant identities and practices.”71 Put differently, anti-discrimination laws are “most effective for otherwise privileged rights claimants (in other words, those who if not for one specific trait would likely not face discrimination).” As Professor Ido Katri illustrates: “A decision not to hire a non-passing uneducated former sex-worker transwoman of color for a low wage job would probably be more difficult to frame as nothing more than a transphobic decision than a decision to dismiss a white transman software engineer who has undergone an extensive surgical transition.”72

    Conclusion

    The concept of “transgender rights” is not about obtaining additional rights or privileges for transgender and gender-nonconforming people. It is rather about treating those people as individual human beings with the same rights and privileges as their cisgender neighbors.

    By extension, transgender rights are not just relevant to transgender and gender-nonconforming people. They are relevant to everyone. Educators, employers, doctors, business owners, legislators, judges, and government officials at every level should at least know about transgender individuals’ unique and often discriminatory circumstances and how the law interacts with those circumstances. The particular issues catalogued in this article – not to mention military service, access to housing,73 identification documents,74 and many others – are among the most pressing transgender-rights issues of the day, but by no means are they the only ones.

    Constitutional, statutory, and common law continue to evolve as society’s awareness of the transgender community continues to increase. Whitaker embodies that evolution and will likely serve as both a catalyst and a roadmap for other courts and lawmakers. The law will continue to change – rapidly. To that end, whether representing transgender clients, defending public entities against discrimination claims, advising businesses on employment policies, or simply curious, Wisconsin lawyers should continuously apprise themselves of legal developments in response to the myriad issues facing transgender and gender nonconforming individuals.

    Meet Our Contributors

    What is the single most important technology used in your law office?

    Joseph S. DiedrichAs I type an answer to this question, it’s tempting to say that the computer is the most important technology – or, perhaps, the internet. Like every modern lawyer, I rely on my computer probably more than any other technology on a day-to-day basis.

    I could also be tongue-in-cheek and answer “the coffee maker” or “credit cards.” Electric light and air conditioning are important office technologies, too. But are any of those things really necessary to practicing law? Of course not.

    If I answer the question by considering what would be most detrimental to lose, then I’m struck by how important paper and pen are. Indeed, even with computers and smartphones, I find it difficult to imagine practicing without paper and pen (and printed ink).

    The problem with answering this question – and the wonderful thing about the world – is that technology accumulates so rapidly that we take the vast majority of it for granted.

    So what is the single most important technology in our law office? I don’t know. But I wouldn’t want to have anything less.

    com Joseph.Diedrich huschblackwell Joseph S. Diedrich, Husch Blackwell LLP, Madison.

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    Endnotes

    1 See Whitaker by Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. of Educ., 858 F.3d 1034, 1039-42 (7th Cir. 2017).

    2 Cara Lombardo, Wisconsin Considers Transgender Anti-Discrimination Bill, LGBTQ Nation (June 3, 2017).

    3 M. Dru Levasseur, Gender Identity Defines Sex: Updating the Law to Reflect Modern Medical Science Is Key to Transgender Rights, 39 Vt. L. Rev. 943, 944 n.1, 951-52 (2015). All people have a gender identity. Id. A “gender-nonconforming” person is one who does not meet societal expectations of gender role. Eli Coleman et al., Standards of Care for the Health of Transsexual, Transgender, and Gender-Nonconforming People, Version 7, 13 Int’l J. Transgenderism 165, 168, 222 (2011); see infra notes 40-42 and accompanying text.

    4 See generally Findings of the National Transgender Discrimination Survey – Wisconsin Results, from Jaime M. Grant et al., Injustice at Every Turn: A Report of the National Transgender Discrimination Survey, Nat’l Center for Transgender Equality (2011), [hereinafter NTDS – Wisconsin]. “Nearly every system and institution in the United States, both large and small, from local to national, is implicated by this data. Medical providers and health systems, government agencies, families, businesses and employers, schools and colleges, police departments, jail and prison systems – each of these systems and institutions is failing daily in its obligation to serve transgender and gender non-conforming people, instead subjecting them to mistreatment ranging from commonplace disrespect to outright violence, abuse and the denial of human dignity. The consequences of these widespread injustices are human and real, ranging from unemployment and homelessness to illness and death.” Grant et al. at 8.

    5 Kevin M. Barry et al., A Bare Desire to Harm: Transgender People and the Equal Protection Clause, 57 B.C.L. Rev. 507, 508 (2016) (internal quotation marks omitted).

    6 Whitaker, 858 F.3d 1034.

    7 20 U.S.C. § 1681(a); see also 34 C.F.R. § 106.31(a); Wis. Stat. § 36.12(1) (prohibiting the University of Wisconsin System from denying admission or otherwise discriminating on the basis of “sex”).

    8 Whitaker, 858 F.3d at 1047-50.

    9 Id. at 1049-50.

    10 Id. at 1045, 1052.

    11 Id. at 1042, 1050-54.

    12 Id. at 1050­­-52.

    13 Id.

    14 Wisconsin: See Mitchell v. Price, No. 11-CV-260-WMC, 2014 WL 6982280, at *8-9 (W.D. Wis. Dec. 10, 2014). But see Fields v. Smith, 712 F. Supp. 2d 830, 867 (E.D. Wis. 2010) [hereinafter Fields I] (applying rational-basis review to transgender plaintiffs’ equal protection claim). Other states: Doe 1 v. Trump, No. CV 17-1597 (CKK), 2017 WL 4873042, at *27-28 (D.D.C. Oct. 30, 2017); Evancho v. Pine-Richland Sch. Dist., 237 F. Supp. 3d 267, 288-­89 (W.D. Pa. 2017); Board of Educ. v. U.S. Dep’t of Educ., 208 F. Supp. 3d 850, 874 (S.D. Ohio 2016); Norsworthy v. Beard, 87 F. Supp. 3d 1104, 1119 (N.D. Cal. 2015); see also Barry et. al., supra note 5, at 550. When deciding which standard of review to apply, courts often consider “(1) whether the class has been historically subjected to discrimination, (2) whether the class has a defining characteristic that frequently bears no relation to ability to perform or contribute to society, (3) whether the class exhibits obvious, immutable, or distinguishing characteristics that define them as a discrete group, and (4) whether the class is a minority or politically powerless.” Board of Educ. v. U.S. Dep’t of Educ., 208 F. Supp. 3d 850 (quoting Lyng v. Castillo, 477 U.S. 635, 638 (1986); City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 440-41 (1985)) (internal citations and quotation marks omitted).

    15 Whitaker, 858 F.3d at 1042, 1055.

    16 Terry Flores, Unified Settles Transgender Lawsuit, Kenosha News (Jan. 9, 2018).

    17 Jillian T. Weiss, Protecting Transgender Students: Application of Title IX to Gender Identity or Expression and the Constitutional Right to Gender Autonomy, 28 Wis. J. L. Gender & Soc’y 331, 340 (2013); see David B. Cruz, Transgender Rights after Obergefell, 84 U.M.K.C.L. Rev. 693 (2016).

    18 Weiss, supra note 17, at 340; see, e.g., Lawrence v. Texas, 539 U.S. 558 (2003) (private decision-making); Griswold v. Connecticut, 381 U.S. 479 (1965) (same); Brown v. Socialist Workers ‘74 Campaign Comm., 459 U.S. 87, 91-92 (1982) (protecting sensitive information); Planned Parenthood v. Danforth, 428 U.S. 52, 80 (1976) (same).

    19 Cruz, supra note 17, at 699-700; see Obergefell v. Hodges, 135 S. Ct. 2584, 2589 (2015); Lawrence, 539 U.S. at 565; Planned Parenthood v. Casey, 505 U.S. 833, 852, 869 (1992).

    20 Obergefell, 135 S. Ct. at 2593. At the same time, “the scope of substantive due process is very limited.” Belcher v. Nelson, 497 F.3d 742, 753 (7th Cir. 2007) (citing Washington v. Glucksburg, 521 U.S. 702 (1997)).

    21 Obergefell, 135 S. Ct. at 2602.

    22 State ex. rel. Sonneborn v. Sylvester, 26 Wis. 2d 43, 49, 132 N.W.2d 249 (1965); Tyler Stevenson, Gender Identity Debuts in Wisconsin Statutes: What It Means for Protecting Transgender Wisconsinites, 31 Wis. J.L. Gender & Soc’y 207, 214 (2016).

    23 NTDS – Wisconsin, supra note 4.

    24 Ulane v. Eastern Airlines, 742 F.2d 1081, 1084, 1085–87 (7th Cir. 1984).

    25 See, e.g., Smith v. City of Salem, Ohio, 378 F.3d 566, 573 (6th Cir. 2004); EEOC v. Rent-A-Ctr. E. Inc., No. 16-CV-2222, 2017 WL 4021130, at *3 (C.D. Ill. Sept. 8, 2017). Taken to its fullest extent, Ulane dehumanizes transgender individuals by declaring them legally nonexistent. Levasseur, supra note 3, at 972.

    26 Oncale v. Sundowner Offshore Servs. Inc., 523 U.S. 75 (1998) (holding same-sex sexual harassment actionable under Title VII); Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). In Oncale, the Court stated, in regard to the definition of “sex” in Title VII, that “statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.” Oncale, 523 U.S. at 79.

    27 Price Waterhouse, 490 U.S. at 251.

    28 E.g., Smith, 378 F.3d at 572–73; see also Chavez v. Credit Nation Auto Sales LLC, 641 F. App’x 883, 884 (11th Cir. 2016); Glenn v. Brumby, 663 F.3d 1312, 1317 (11th Cir. 2011) (Equal Protection Clause); Macy v. Holder, 2012 WL 1435995 (EEOC 2012).

    29Rent-A-Ctr. E., 2017 WL 4021130, at *3-4 (quoting Whitaker, 858 F.3d at 1048).

    30Hively v. Ivy Tech Cmty. Coll. of Ind., 853 F.3d 339, 351-52 (2017) (en banc); id. at 354 (Posner, J., concurring). For more on Hively’s potential impact on statutory interpretation, see Douglas O. Smith, Statutory Interpretation: An Uncertain Future, 90 Wis. Law. 42 (Dec. 2017)

    31 Rent-A-Ctr. E., 2017 WL 4021130, at *3-4.

    32 U.S. Dep’t of Justice, Memorandum re: Revised Treatment of Transgender Employment Discrimination Claims Under Title VII of the Civil Rights Act of 1964 (Oct. 4, 2017) (italics in original).

    33 42 U. S. C. § 2000e(b).

    34 See Wis. Stat. §§ 111.31, 230.18.

    35 E.g., Iowa Code § 216.6 (gender identity is a protected class); Minn. Stat. § 363A.03(44) (“sex” includes gender identity).

    36 Crosby Bums, The Costly Business of Discrimination: The Economic Costs of Discriminationand the Financial Benefits of Gay and Transgender Equality in the Workplace, Ctr. for Am. Progress (Mar. 2012); The Cost of Employee Turnover Due Solely to Unfairness in the Workplace, Level Playing Field Inst. (2007); see also, e.g., Shannon Green, A Game Changer: Diversity and Inclusion Boosts Bottom Line, InsideTrack (State Bar of Wis.) (Feb. 7, 2018); Kimberly Amadeo, Cultural Diversity in the Work Place, The Balance (June 10, 2017); Jared Bilski, Last Year’s Top Discrimination Suits Cost Employers $346M, CFO Daily News (Jan. 11, 2011).

    37 Gianna M. Kelly, Comment, Transitioning into Modern Society: Why the Law Is Not Keeping up with Gender Identity, 35 J.L. & Com. 101, 115 (2016).

    38 Transgender Workplace Rights, Lambda Legal (last visited Dec. 19, 2017).

    39 Yeongsik Kim, Comment, Using Collective Bargaining to Combat LGBT Discrimination in the Private-Sector Workplace, 30 Wis. J. L. Gender & Soc’y 73, 86-90 (2015).

    40 Am. Psych. Ass’n, Diagnostic and Statistical Manual of Mental Health Disorders: Fifth Edition (DSM-5) 452-53 (2011).

    41 Coleman et al., supra note 3, at 171. Gender confirmation surgery, which is sometimes referred to as “sex reassignment surgery,” is considered reconstructive surgery – not cosmetic surgery. See id. at 201. For many gender dysphoric individuals, gender confirmation surgery is medically necessary. See Gail Knudson et al., World Professional Ass’n for Transgender Health, Position Statement on Medical Necessity of Treatment, Sex Reassignment, and Insurance Coverage in the U.S.A. (2016). “Other accommodations” often include, without limitation, electrolysis or laser hair removal, breast augmentation, voice therapy, and “gendered” articles such as makeup.

    42 Coleman et al., supra note 3, at 166. The WPATH Standards of Care are also available online. Other standards and guidelines are also used. See, e.g., Center of Excellence for Transgender Health, Univ. of Cal., S.F., Guidelines for the Primary and Gender-Affirming Care of Transgender and Gender Nonbinary People (Madeline B. Deutsch, ed., 2d ed. 2016). For examples of courts and associations that have recognized the standards, see, for example, De’lonta v. Johnson, 708 F.3d 520, 522-23 (4th Cir. 2013); Norsworthy, 87 F. Supp. at 1170; Fields I, 712 F. Supp. 2d at 844; American Medical Association House of Delegates Resolution 122 (A-08); see also Levasseur, supra note 3, at 954.

    43 NTDS – Wisconsin, supra note 4.

    44 Am. Med. Ass’n H. of Del., Res. 122, 110th Cong. (2008); Am. Psych. Ass’n, Resolution on Transgender, Gender Identity, and Gender Expression Non-Discrimination (Aug. 2008).

    45 Medicare and Transgender People, Nat’l Center for Transgender Equality (May 2014); U.S. Dep’t of Health & Human Servs., NCD 140.3, Transsexual surgery, DAB Decision No. 2576 (May 30, 2014).

    46 Map: State Health Insurance Rules, Nat’l Center for Transgender Equality (May 13, 2016).

    47 Patient Protection and Affordable Care Act, Pub. L. No. 111-148, § 1557, 124 Stat. 119 (codified at 42 U.S.C. § 18116); see Wyatt Fore, Trans/Forming Healthcare Law: Litigating Antidiscrimination under the Affordable Care Act, 28 Yale J.L. & Feminism 243 (2017).

    48 See generally Yvette K.W. Bourcicot & Daniel Hirotsu Woofter, Prudent Policy: Accommodating Prisoners with Gender Dysphoria, 12 Stan. J. C.R. & C.L. 283 (2016); Tammi S. Etheridge, Safety v. Surgery: Sex Reassignment Surgery and the Housing of Transgender Inmates, 15 Geo. J. Gender & L. 585 (2014). The statistics are from Grant et al., supra note 4, at 163; see also George R. Brown & Everett McDuffie, Health Care PoliciesAddressing TransgenderInmates in Prison Systems inthe United States, 15 J. CorrectionalHealth Care280, 281-82 (2009).

    49 See generally Etheridge, supra note 48. Prison officials are granted wide discretion to make housing determinations. Bourcicot & Woofter, supra note 48, at 320; see also Turner v. Safley, 482 U.S. 78, 84-85 (1987).

    50 Bourcicot & Woofter, supra note 48, at 317.

    51 See Shaw v. District of Columbia, 944 F. Supp. 2d 43, 48-52, 57 (D.D.C. 2013) (condemning jail for housing post-operative transgender women with men).

    52 See Kosilek v. Spencer, 774 F.3d 63, 73-74 (1st Cir. 2014); Bourcicot & Woofter, supra note 48, at 317-19; Dan Schneider, Comment, Decency, Evolved: The Eighth Amendment Right to Transition in Prison, 2016 Wis. L. Rev. 835, 843.

    53 Wis. Dep’t of Corrections Executive Directive No. 72 § XIII.E (Jan. 2016); Wis. Dep’t of Corrections, Division of Adult Institutions Policy No. 500.70.27 § II.I (Nov. 2017); Bourcicot & Woofter, supra note 48, at 320-25 (2016); Schneider, supra note 52, at 843; Etheridge, supra note 48, at 596; see Angela Browne et al.,Prisons within Prisons: The Use of Segregation in the United States, 24 F. Sent’g Rep. 46, 47 (2011).

    54 Browne et al., supra note 53, at 47; see Etheridge, supra note 48, at 596, 598-600.

    55 See, e.g., Wis. Dep’t of Corrections Executive Directive No. 72 §§ X.D, XIII.E (Jan. 2016); Bourcicot & Woofter, supra note 48, at 325-31.

    56 Wis. Dep’t of Corrections, Division of Adult Institutions Policy No. 500.70.27 § III.A & Attach. 1 (Nov. 2017).

    57 34 U.S.C. §§30301-30309; Wis. Dep’t of Corrections Executive Directive No. 72 (Jan. 2016); Grant et al., supra note 4, at 167-68.

    58 NTDS – Wisconsin, supra note 4.

    59 See Stevenson, supra note 22, at 213.

    60 See Stevenson, supra note 22, at 213, 221-22.

    61 See, e.g., Wis. Stat. § 106.52.

    62 In 2005, Wisconsin enacted the Inmate Sex Change Prevention Act, 2005 Wis. Act 105, which was subsequently struck down in Fields v. Smith, 653 F.3d 550 (7th Cir. 2011).

    63 2015 A.B. 469 § 1; 2015 S.B. 582 § 1. The bills, which also applied to “changing rooms,” failed under S. Joint Res. 1 (2016).

    64 2015 A.B. 24 § 1. The bill failed under S. Joint Res. 1 (2016).

    65 2017 A.B. 349 §§ 1-2; 2017 S.B. 261 §§ 1-2.Rep. Todd Novak (R-Dodgeville) is a cosponsor of 2017 A.B. 349.

    66 2017 A.B. 418; 2017 S.B. 328 § 2.

    67 See Non-Discrimination Laws, Movement Advancement Project (last visited Dec. 29, 2017).

    68 On the anti-discrimination front, amending existing lists to include “gender identity” is not the only way to structure legislation. Wisconsin Statutes section 990.01, a long section of interpretational rules, could be amended to state that wherever the word “gender” appears in a statute, it includes gender identity and gender expression, not merely anatomical sex. See Wis. Stat. § 990.01; see also § 990.001(2); Stevenson, supra note 21, at 224.

    69 Appleton, Wis., Code §§ 8.30, 8.50-8.51; Cudahy, Wis., Code §§ 20-21, 20-22; Dane Cty., Wis., Code §§ 18.20, 19.025, 19.04(7); Janesville, Wis., Code §§ 9.07.010, 9.07.030-9.07.040, 16.04.010, 16.04.040; Madison, Wis., Code §§ 39.03(1)-(3); Milwaukee, Wis., Code §§ 109-1, 109-9; Milwaukee Cty., Wis., Code §§ 4.21, 23.03, 30.11, 33.01, 46.09, 56.17, 90.04, 107.02.

    70 Ido Katri, Transgender Intrasectionality: Rethinking Anti-Discrimination Law and Litigation, 20 U. Pa. J.L. & Soc. Change 51, 67 (2017) (citing).

    71 Id. at 56.

    72 Id. at 67.

    73 NTDS – Wisconsin, supra note 4.

    74 E.g., Levasseur, supra note 3, at 959-63; see also Anna James Neuman Wippler, Comment, Identity Crisis: The Limitations of Expanding Government Recognition of Gender Identity and the Possibility of Genderless Identity Documents, 39 Harv. Women’s L.J. 491 (2016). Wisconsin allows individuals to amend the gender designation on their birth certificate only if they have undergone gender confirmation surgery. Wis. Stat. § 69.15(4)(b). Legal name changes in Wisconsin are governed by Wisconsin Statutes section 786.37.




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