By Philip Young
Introduction
Joseph Heller’s classic novel Catch-22 centers around Air Force pilots during World War II.[1] Throughout the book, various circumstances force the characters to make seemingly impossible choices.[2] The central dilemma the soldiers encounter is choosing between following orders and their instinctive desire for self-preservation.[3] In response to their well‑founded fears, pilots attempt to avoid future missions by claiming to be mentally insane.[4] To curtail cautious but otherwise capable soldiers from evading duty, the military implements the Catch-22 rule.[5] Although the rule is not revealed explicitly, Heller provides a descriptive definition, stating:
There was only one catch and that was Catch-22, which specified that a concern for one’s safety in the face of dangers that were real and immediate was the process of a rational mind. [If a pilot] was crazy [he] could be grounded. All he had to do was ask; and as soon as he did, he would no longer be crazy and would have to fly more missions. [A pilot] would be crazy to fly more missions and sane if he didn’t, but if he were sane he had to fly them. If he flew them he was crazy and didn’t have to, but if he didn’t want to he was sane and had to.[6]
In popular culture, “a Catch-22” has become an eponym for similar situations. Merriam-Webster defines it as “a problematic situation for which the only solution is denied by a circumstance inherent in the problem or by a rule.”[7] While these circumstances are not uncommon, the Louisiana legislature recently placed public school administrators in a similar no-win situation.[8]
In recent years, LGBTQ+ rights have been the subject of intense legal and political discussions.[9] On November 18, 2003, Massachusetts became the first state to legalize same-sex marriage.[10] This decision acted as a key development in the fight for LGBTQ+ rights and contributed to an already shifting cultural momentum.[11] This momentum reached a crescendo in the United States Supreme Court’s 2015 landmark decision Obergefell v. Hodges, which legalized same-sex marriage on a federal level.[12]
In the same year, the Equal Employment Opportunity Commission (EEOC) issued a seemingly prophetic decision.[13] In Lusardi v. Department of the Army, the United States Army hired a transgender woman as a civilian employee.[14] The employee agreed to use a single‑occupant, gender‑neutral bathroom.[15] On multiple occasions, however, the single-occupant restroom was inaccessible.[16] As a result, the employee used the common female restroom.[17] After doing so, she was confronted by a supervisor who told her “that she was making people uncomfortable, and that she had to use the executive restroom until she could show proof of having undergone the ‘final surgery.’’’[18] This ultimately caused the employee to file a complaint with the EEOC.[19] In turn, the EEOC determined that an employer may not deny a transgender employee access to a restroom that comports with the employee’s gender identity.[20]
Five years after Obergefell and Lusardi, the Supreme Court extended protections to other members of the LGBTQ+ community.[21] In Bostock v. Clayton County, the Court held that an employer who renders a negative employment consequence on a transgender employee because of his or her transgender status discriminates on the basis of sex.[22] Under the Civil Rights Act of 1964, this discrimination is unlawful.[23]
In stark contrast to the federal government’s unabashed social progressivism, Louisiana’s legislature enacted competing laws in its 2024 session.[24] On June 3, 2024, Louisiana Governor Jeff Landry signed House Bill 608, the Women’s Safety and Protection Act (WSPA).[25] The WSPA’s opening statute states that “no governmental agency . . . shall prohibit distinctions between the sexes with respect to . . . accommodation[s] where biology, safety, or privacy are implicated and . . . are substantially related to the important government interest of protecting the health, safety, and privacy of individuals.”[26] Further, the WSPA states that it does not prohibit institutions from establishing single‑occupant restrooms that are not designated by sex.[27] Two statutes later, however, the WSPA states:
A public school shall designate each multi-occupancy restroom or changing room for the exclusive use of either females, males, or members of the same family.
B. (1) A restroom or changing room within a public school that is designated for males or females shall be used only by members of that same sex. No individual shall enter a restroom or changing room that is designated for one sex unless the individual is a member of that sex.
(2) The public school shall take reasonable steps to provide individuals with privacy in restrooms and changing rooms from members of the opposite sex.[28]
The WSPA’s mandatory language and insistence on segregating restrooms based on users’ biology conflicts with the federal government’s articulated policies.[29] As a result, it places Louisiana public school administrators in an impossible situation.
I. Federal Policy
Throughout recent years, LGBTQ+ activism has steadily expanded its influence in the cultural mainstream. During this time, activists have routinely asked the government to establish or recognize LGBTQ+ individuals’ rights.[30] Although the government’s response has varied among jurisdictions, it has regularly extended protections to LGBTQ+ individuals at the federal level.[31]
A. Before Bostock: Split Circuits
In 2015, the EEOC decided that a federal agency committed sex discrimination by denying a transgender employee equal access to a common restroom corresponding to her gender identity. In Lusardi, the United States Army hired the complainant, a transgender woman, as a civilian employee.[33] In a meeting with the complainant and two supervising officers, the three agreed that she would use a single‑occupant restroom until the complainant had undergone an “undefined surgery.”[34] However, on three occasions, the complainant used the common female restroom.[35] After one such instance, an officer confronted her, told her that she was making people uncomfortable, and instructed her to use the single‑occupant restroom until showing proof of having undergone the “final surgery.”[36] The complainant subsequently filed a charge with the EEOC.[37] She argued that her employer violated Title VII of the Civil Rights Act of 1964 (Title VII) by discriminating against her on the basis of sex.[38] The Army contended that no law required it to allow transgender employees to use restrooms consistent with their gender identity.[39] Further, the Army asserted that it lacked clarity on whether the complainant’s “inability to use a restroom with equivalent amenities constitute[d] an adverse action.”[40] Ultimately, the EEOC determined that the Army subjected the complainant to disparate treatment on the basis of sex and created a hostile work environment.[41] As a result, the EEOC held that the Army’s actions violated Title VII.[42]
In the same year that the Supreme Court decided Lusardi, both the Department of Labor (DOL) and Occupational Safety and Health Administration (OSHA) issued guidance regarding restroom access for transgender workers.[43] In its guidance, the DOL incorporated the Office of Personnel Management’s (OPM) policy, which states that federal agencies should allow an employee “who has begun living and working full-time in the gender consistent with the employee’s gender identity . . . to use the restrooms . . . consistent [with the same].”[44] However, the DOL did not comment on private employers’ duties.
Similarly, OSHA’s guidance also states that employers should allow transgender employees to use restrooms that correspond to their gender identity.[45] Further, it states that employers should provide additional discretionary restroom options for transgender employees, including gender‑neutral, single‑occupant, and multiple‑occupant restrooms.[46] Although no employer can require an employee to use a segregated facility because of their gender identity or transgender status under this guidance, employees may freely choose to do so.[47] The guidance also notes that employers should not ask employees to provide any medical or legal documentation of their gender identity to have access to these facilities.[48] While OSHA’s best practices seem to increase employers’ duties, it also expressly states that it creates no new legal obligations for employers.[49]
Conversely, in 2019, the United States Fifth Circuit Court of Appeal reiterated that Title VII does not prohibit discrimination on the basis of transgender status.[50] In Wittmer v. Phillips 66 Co., the Phillips 66 Company (Phillips 66) extended an offer of employment to a transgender woman but later retracted it because of discrepancies in her background check.[51] The applicant subsequently filed suit and argued that Phillips 66 discriminated against her on the basis of her transgender status.[52] In its analysis, the Fifth Circuit recognized that three of its sister circuits had recently determined that Title VII prohibits transgender discrimination.[53] Instead of adopting this stance, however, the court stated that its own precedent did not prohibit transgender discrimination.[54] Consequently, employers could discriminate based on transgender status within the Fifth Circuit.[55]
B. After Bostock: The Circuit Split Settles
An employer who discriminates against an employee for traits or actions that it would not have questioned if the employee was a different sex violates Title VII.[56] In Bostock, a biologically male employee with gender dysphoria informed her employer that she planned to live and work as a female.[57] As a result, her employer, R.G. & G.R. Harris Funeral Homes, fired her.[58] She subsequently filed suit alleging Title VII violations.[59] After carefully examining Title VII’s words and intent and considering relevant precedent, the Court ultimately stated that it is “impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”[60] The Court held that “an employer who intentionally penalizes an employee for being homosexual or transgender . . . violates Title VII.”[61] Therefore, under Bostock, employers may not treat transgender employees differently based on their sexual identity.[62] As a result, the Supreme Court’s decision superseded previous case law that held the contrary, including Wittmer.
II. The WSPA and Public School Employees
In Bostock, the Supreme Court made it clear that employers who discriminate against employees based on their transgender status violate the Civil Rights Act of 1964.[63] Federal employment discrimination policy mandates that employers grant transgender employees access to restrooms that correspond with their gender identity.[64] Certain employers may find it difficult to comply, however, given Louisiana’s recent legislative changes.[65]
The WSPA, passed in the 2024 legislative session, states that Louisiana public schools “shall designate each multi‑occupancy restroom or changing room for the exclusive use of either females, males, or members of the same family.”[66] In passing the WSPA, the state legislature asserted that it proffered the bill for women’s safety and well‑being.[67] By prohibiting men in women’s public school restrooms, the state legislature ostensibly contends that women are safer.[68] Louisiana is home to approximately 1,300 public schools.[69] Since this new law applies to all of them, every school, from LSU, which enrolls over 30,000 students, to Bunkie Elementary, which enrolls approximately 300 students, must comply. When considered from an employment perspective, however, the WSPA may force some schools into unlawful action.[71]
When a transgender individual applies for employment with a Louisiana public school, Bostock indicates that any negative employment action taken against the employee on the basis of his or her transgender status violates Title VII.[72] Examples of negative employment actions include, among others, the school’s failure to hire the employee, the employee’s termination, or the school’s refusal to provide access to restroom facilities that correspond with the employee’s sexual identity.[73] While schools can likely implement customary and familiar safeguards against transgender discrimination in most circumstances, given the recent legislative changes, restroom access could present a difficult situation for some Louisiana public schools.
It is impossible to consider the various restroom facilities at every Louisiana public school. At smaller schools, there may only be single‑occupant restrooms. Others may have multiple‑occupant restrooms for the students and single‑occupant restrooms for the faculty and staff. Still others may have only multiple‑occupant restrooms that everyone uses.
The WSPA requires schools to designate these multiple-occupant restrooms for use by individuals of one sex and “[n]o individual shall enter a restroom . . . unless the individual is a member of that sex.”[74] The legislature’s use of the mandatory verb “shall” indicates that compliance is not optional.[75] Further, the statute requires schools to segregate users according to their sex, not gender.[76] Although not expressly stated, the statute seemingly acknowledges a difference between gender and sex.[77] The statute would have permitted transgender individuals to use the restrooms that correspond to their gender identity if the legislature required restrooms to be designated according to gender. In this case, however, the statute would arguably have little to no effect. Instead, the WSPA mandates schools to designate restrooms according to sex.[78] In doing so, the legislature refers to users’ biological and anatomical makeup.[79] As a result, the WSPA requires public schools to deny restroom access to anyone who does not belong to the designated “sex,” placing public schools with transgender employees in a difficult situation.[80]
On the one hand, Louisiana schools may choose to abide by the WSPA. In doing so, the schools would designate multiple‑occupancy restrooms for use by either males or females and deny access to individuals of the other sex.[81] Since transgender individuals’ biological identity and gender identity do not match, the statute would require Louisiana public schools to deny a transgender employee access to the restroom that comports with his or her gender identity.[82] Not only would this directly contradict federal policy, but it would violate Title VII.[83] As a result, employees could bring an EEOC complaint or employment discrimination claim against the school.[84]
On the other hand, public schools may choose to comply with federal law and permit a transgender employee to use the multiple‑occupancy restroom that corresponds to his or her gender identity.[85] This action, however, would conflict with the WSPA because it specifically mandates that public schools segregate users based on biological sex.[86] Since the WSPA states that an individual may bring a claim under the statute and receive injunctive relief, actual damages, and attorney’s fees, public schools would likely face similar exposure to litigation under these circumstances.
Conclusion
In recent years, the LGBTQ+ community has successfully garnered increased protections at the federal level. Federal policy clearly dictates that transgender individuals should be permitted to use a restroom that comports with their gender identity. At the same time, the WSPA aims to exclude biological men from women’s restrooms to benefit women’s health and safety. After signing the WSPA, Louisiana’s Governor Jeff Landry commented:
The attack on women that we have seen taking place across our country has no place in the state of Louisiana. I was proud to sign House Bill 608 which protects women’s safety and reinforces the very definition of what it means to be a woman. Enough is enough. Louisiana will not allow biological men to take advantage of opportunities for women. We want women across the country to know that your privacy, safety, and opportunities are valued and will always be protected in Louisiana.[87]
While the governor’s comments may be polarizing, the intersection of transgender and women’s rights highlights an intriguing legal and political crossroads. In any case, by passing the WSPA, Louisiana’s state government may have made it impossible for some public schools to comply with both federal and state law. As a result, some schools may face increased litigation regardless of their path forward.
[1] Joseph Heller, Catch-22 (1961).
[2] Id.
[3] Id.
[4] Id.
[5] Id. at 56.
[6] Id.
[7] Catch-22, Merriam-Webster (11th ed. 2024).
[8] Compare Lusardi, EEOC Decision No. 0120133395, 2015 WL 1607756 (Apr. 1, 2015), and Bostock v. Clayton Cnty., 590 U.S. 644, 651–52 (2020), with La. Rev. Stat. § 9:62.
[9] See generally Geoff Mulvihill, Things to Know about Developments Impacting LGBTQ+ Rights Across the US, APNews (Mar. 15, 2024, 2:21 PM), https://apnews.com/article/lgbtq-rights-dont-say-gay-licenses-d0bf9d2f314ec6f28f2189795ea2d56c [https://perma.cc/LKD7-PMN2].
[10] See Goodridge v. Dep’t of Pub. Health, 798 N.E.2d 941, 969 (2003); Morning Edition, 20 Years Ago Massachusetts Became the First State to Allow Same-Sex Marriage, NPR, at 00:01 (May 17, 2024), https://www-s4.npr.org/2024/05/17/1252012776/20-years-ago-massachusetts-became-the-first-state-to-allow-same-sex-marriage[https://perma.cc/TW72-PEUR].
[11] See generally Yvonne Abraham, Gays Seek Right to Marry Mass. Lawsuit Goes Beyond Civil Unions, Bos. Globe (Apr. 12, 2001), https://web.archive.org/web/20160213222452/https://www.highbeam.com/doc/1P2-8646465.html [https://perma.cc/3UYQ-45Y8].
[12] Obergefell v. Hodges, 576 U.S. 644 (2015).
[13] Lusardi, 2015 WL 1607756.
[14] Id. at *1.
[15] Id. at *2.
[16] Id.
[17] Id.
[18] Id.
[19] Id.
[20] Id. at *18.
[21] See Bostock v. Clayton Cnty., 590 U.S. 644, 644 (2020).
[22] Id. at 683.
[23] Id. at 651–52.
[24] La. Rev. Stat. § 9:60–63.
[25] Domenic Purdy, Landry Signs Law Prohibiting Transgender People from Facilities that Align with Chosen Gender, WBRZ (June 5, 2024, 2:53 PM), https://www.wbrz.com/news/landry-signs-law-prohibiting-transgender-people-from-facilities-that-align-with-chosen-gender/ [https://perma.cc/Y4WE-25HS].
[26] La. Rev. Stat. § 9:60.
[27] Id.
[28] Id. § 9:62.
[29] Compare Lusardi, EEOC Decision No. 0120133395, 2015 WL 1607756 (Apr. 1, 2015), with Bostock v. Clayton Cnty., 590 U.S. 644 (2020), and Dep’t of Lab., DOL Policies on Gender Identity: Rights and Responsibilities (2015), https://www.dol.gov/sites/dolgov/files/OASAM/legacy/files/20150422GenderIdentity.pdf [https://perma.cc/W5L5-R73X].
[30] See Bostock, 590 U.S. at 654.
[31] See id. at 649–50.
[32] Lusardi, 2015 WL 1607756. The EEOC is a federal agency that enforces federal employment discrimination laws. Overview, U.S. Equal Emp. Opportunity Comm’n, https://www.eeoc.gov/overview[https://perma.cc/82FL-EFDZ]. Although it is multi-faceted, the agency investigates employment discrimination complaints and renders administrative law decisions. Id. These decisions are persuasive authority to the judiciary. The EEOC may also choose to file suit on an employee’s behalf and represent the employee throughout the claim. Id.
[33] Lusardi, 2015 WL 1607756, at *1.
[34] Id. at *2.
[35] Id.
[36] Id.
[37] Id. at *1.
[38] Id. at *5.
[39] Id.
[40] Id.
[41] Id. at *13.
[42] Id. at *10.
[43]Dep’t of Lab., DOL Policies on Gender Identity: Rights and Responsibilities (2015), https://www.dol.gov/sites/dolgov/files/OASAM/legacy/files/20150422GenderIdentity.pdf [hereinafter Policies on Gender Identity] [https://perma.cc/W5L5-R73X]; Occupational Safety & Health Admin., A Guide to Restroom Access for Transgender Workers (2015), https://www.osha.gov/sites/default/files/publications/OSHA3795.pdf [hereinafter A Guide to Restroom Access] [https://perma.cc/9W5K-KHWC]. The DOL supports workers by providing job training, wage standards, unemployment benefits, and workplace rights. Frequently Asked Questions: What Does the Department of Labor Do?, Dep’t of Lab., https://webapps.dol.gov/dolfaq/go-dol-faq.asp?faqid=478&faqsub=General+Information&faqtop=About+DOL&topicid=9[https://perma.cc/437H-Y8YX]. OSHA, a part of the DOL, focuses on setting standards and enforcing regulations to ensure workplace safety and health. About OSHA, Occupational Safety & Health Admin., https://www.osha.gov/aboutosha[https://perma.cc/N3U6-AAHU].
[44] Policies on Gender Identity, supra note 43.
[45] A Guide to Restroom Access, supra note 43.
[46] Id. at 2.
[47] Id.
[48] Id.
[49] Id. at 4.
[50] Wittmer v. Phillips 66 Co., 915 F.3d 328, 330 (5th Cir. 2019).
[51] Id. at 331.
[52] Id.
[53] Id. at 330 (first citing Zarda v. Altitude Express, Inc., 883 F.3d 100 (2d Cir. 2018) (en banc); then citing EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., 884 F.3d 560 (6th Cir. 2018); and then citing Hively v. Ivy Tech Cmty. Coll. of Ind., 853 F.3d 339 (7th Cir. 2017) (en banc)).
[54] Id.
[55] Id.
[56] Bostock v. Clayton Cnty., 590 U.S. 644, 651–52 (2020).
[57] Id. at 653–54.
[58] Id. at 654.
[59] See id.
[60] Id. at 658, 660, 663–66.
[61] Id. at 653. In Bostock, the Court defined discrimination by example, stating: “[A]n employer who intentionally treats a person worse because of sex—such as by firing the person for actions or attributes it would tolerate in an individual of another sex—discriminates against that person in violation of Title VII.” Id. at 658.
[62] Id.
[63] See id. at 658, 660, 663–66.
[64] See Lusardi, EEOC Decision No. 0120133395, 2015 WL 1607756 (Apr. 1, 2015).
[65] See La. Rev. Stat. § 9:62.
[66] Id.
[67] Press Release, Office of the Governor, Louisiana, Governor Landry Signs Women’s Safety and Protection Act Into Law (June 6, 2024), https://gov.louisiana.gov/news/4536 [https://perma.cc/5FFG-7KBV].
[68] Id.
[69] Public Schools, La. Dep’t of Educ., https://www.louisianabelieves.com/schools/public-schools [https://perma.cc/XQC9-Z992].
[70] Spring 2024 Student Enrollment Highlights, La. State Univ. Off. of Data and Strategic Analytics, https://gradlsu.gs.lsu.edu/data/files/enrollment_highlights/spring2024_enrollment-highlights.pdf [https://perma.cc/S76Y-F3QB]; La. Dep’t of Educ., Multiple Statistics By School System for Elementary/Secondary Public Students (2024), (available at https://louisianabelieves.com/resources/library/student-attributes [https://perma.cc/7PRT-PYMC]).
[71] See La. Rev. Stat. § 9:62(B)(1).
[72] See Bostock v. Clayton Cnty., 590 U.S. 644, 658, 660, 663–66 (2020).
[73] See id.; Lusardi, EEOC Decision No. 0120133395, 2015 WL 1607756 (Apr. 1, 2015).
[74] La. Rev. Stat. § 9:62(B)(1).
[75] Id.; See id. § 1:3. (“The word ‘shall’ is mandatory, and the word ‘may’ is permissive.”).
[76] Id. § 9:62(B)(1).
[77] See id.
[78] Id.
[79] Press Release, Office of the Governor, Louisiana, Governor Landry Signs Women’s Safety and Protection Act Into Law (June 6, 2024), https://gov.louisiana.gov/news/4536 [https://perma.cc/5FFG-7KBV].
[80] Compare La. Rev. Stat. § 9:62(B)(1), with Lusardi, EEOC Decision No. 0120133395, 2015 WL 1607756 (Apr. 1, 2015).
[81] La. Rev. Stat. § 9:62(B)(1).
[82] See generally Jenny Graves, How Genes and Evolution Shape Gender – and Transgender – Identity, The Conversation (Jan. 23, 2019, 2:05 PM), https://theconversation.com/how-genes-and-evolution-shape-gender-and-transgender-identity-108911?form=MG0AV3 [https://perma.cc/V97R-EYSR].
[83] See Lusardi, 2015 WL 1607756; Bostock v. Clayton Cnty., 590 U.S. 644, 644 (2020); Policies on Gender Identity, supra note 43.
[84] See id.
[85] See id.
[86] La. Rev. Stat. 9:62(B)(1).
[87] Domenic Purdy, Landry Signs Law Prohibiting Transgender People from Facilities that Align with Chosen Gender, WBRZ (June 5, 2024, 2:53 PM), https://www.wbrz.com/news/landry-signs-law-prohibiting-transgender-people-from-facilities-that-align-with-chosen-gender/ [https://perma.cc/Y4WE-25HS].