Last week saw a wave of legal developments—legislative, jurisprudential, and administrative—on issues related to trans rights. While state legislatures passed laws restricting medical care for transgender minors, and barring trans women and girls from participating in school sports, federal appellate courts upheld the rights of transgender students and the Biden administration weighed in on the trans athlete issue. On April 6 the Supreme Court refused to lift a ban imposed by the Fourth Circuit on the enforcement of a West Virginia law that would prevent transgender students from competing on sports teams that corresponded to their gender while litigation about the constitutionality of the law is pending. West Virginia was attempting to enforce that law against a 12-year-old girl who wanted to run track at her middle school. That same day the U.S. Department of Education released a proposed rule that would address transgender students’ athletic participation. That rule, however, far from protecting trans students’ right to be treated equally to other members of their gender, would only prohibit a school from imposing a blanket ban on students’ participation in sports that corresponded to their genders. Schools would retain the authority to restrict trans athletes’ participation in sports if they could show that the restriction is “substantially related to the achievement of an important educational objective and (ii) minimize[s] harms to students whose opportunity to participate on a male or female team consistent with their gender identity would be limited or denied.”
In the summer of 2020, the United States was experiencing both the early phase of the COVID-19 pandemic and nation-wide outrage over the police killing of George Floyd. Employees at Whole Foods grocery stores around the country—some Black, some not—began wearing face masks promoting the Black Lives Matter movement. Whole Foods management responded by reprimanding these employees for violating a dress code policy against clothing with messages or logos, even though the policy had never been consistently enforced in the past. Employees who insisted on wearing the masks were sent home. Eventually, some employees were fired.
One employee who was fired was Savannah Kinzer, who worked at the River Street Whole Foods store in Cambridge. In July 2020, Kinzer and others from around the country sued Whole Foods in a Massachusetts federal court, alleging racial discrimination and illegal retaliation under Title VII of the Civil Rights Act. On January 23, 2023, Kinzer suffered a defeat when District Court Judge Allison Burroughs, an Obama appointee, granted a motion by Whole Foods for summary judgement. Despite the disappointing outcome, the litigation so far has also prompted positive developments with respect to associational discrimination claims in the First Circuit.
Phases of the Case
By Julia Gaffney, law student intern
Last week the Fourth Circuit Court of Appeals held that individuals who experience gender dysphoria can be protected from discrimination under the Americans with Disabilities Act (ADA) and the Rehabilitation Act.
Kesha Williams, a transgender woman with gender dysphoria, was incarcerated for six months in Fairfax County Adult Detention Center. Although she was originally assigned to be housed with female inmates, when the prison officials found that Ms. Williams is transgender they moved her to the male housing section. They also refused to provide Ms. Williams with her medical hormone treatment, which she had been taking for fifteen years to treat her gender dysphoria, intentionally misgendered her, and physically harassed her. When she was released, Ms. Williams filed a § 1983 action against the Sheriff of Fairfax County, a prison deputy, and a prison nurse alleging ADA violations, constitutional violations, and state law violations. The district court dismissed Williams’ claims under the ADA and Rehabilitation Act holding that gender dysphoria does not constitute a disability under those statutes. The district court dismissed her complaints for failure to state grounds for relief and for statute of limitations reasons.