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Hastings Women’s Law Journal

Abstract

Recently, numerous states have considered enacting transgender bathroom laws based on the individual’s biological sex. In some cases, when these biology-based laws have been enacted, the results have been lawsuits filed by students and employees claiming violations of Title IX and Title VII. Actually, the legal rights of transgender students and employees when using public restrooms or facilities has become a hot topic of debate in recent times. In addressing this hotly debated topic, this article focuses on the transgender bathroom issue at the state level and provides insight into the attempts by states to turn policy into law. First, the article surveys a sample of contemporary transgender bathroom legislation, proposed or adopted by states throughout the country. Afterwards, it discusses several federal cases in which courts addressed the legality of biology-based transgender bathroom laws in the public educational and employment sectors. Next, it explores the legal implications to be considered by states when determining whether to base their individual state law on biology or gender identity. Finally, the article concludes by arguing that transgender bathroom laws, if enacted, should be based on an individual’s gender identity. Such a result would address the discrimination issue and reduce potential liability for state agencies and other government entities.

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