Responding to the Transgender Bathroom Access Controversy

Historically, a person's gender was determined at birth. But in recent years, some have argued that their "gender identity" is different from their gender at birth. For example, while born a biological male, a person comes to identify with the female gender. Such persons are commonly referred to as "transgender” individuals. Some of them have surgery or hormonal therapy to change some of their physical characteristics, but many do not.

On May 13, 2016, the Civil Rights Division of the US Department of Justice (DOJ) issued a letter advising schools receiving federal financial assistance of their obligations under a federal law (Title IX of the Education Amendments of 1972) regarding transgender students. The letter warns schools that "they have a responsibility to provide a safe and nondiscriminatory environment for all students, including transgender students," and that a failure to do so may lead to loss of federal financial assistance under federal programs.

The letter addresses restrooms and locker rooms as follows: "A school may provide separate facilities on the basis of sex, but must allow transgender students access to such facilities consistent with their gender identity. A school may not require transgender students to use facilities inconsistent with their gender identity or to use individual-user facilities when other students are not required to do so. A school may, however, make individual-user options available to all students who voluntarily seek additional privacy."

The letter affirms that "in this letter, the term schools refers to recipients of federal financial assistance at all educational levels, including school districts, colleges, and universities. An educational institution that is controlled by a religious organization is exempt from Title IX to the extent that compliance would not be consistent with the religious tenets of such organization.” (emphasis added)

How churches are legally affected

While the DOJ letter does not apply to churches, it has raised a concern among many church leaders regarding the response by churches to transgender individuals who have a gender identity different from their biological sex at birth. For example, is a church legally required to:

• Allow persons to use restrooms according to their gender identity even if different from their sex at birth?

• Allow transsexuals who have received surgical or hormonal treatments to alter certain sexual characteristics to use restrooms according to their gender identity?

• Allow persons to share hotel rooms on church-organized trips according to their gender identity rather than their sex at birth?

• Refrain from discriminating in employment decisions on the basis of gender identity?

The answers to these questions are complicated by two factors. First, the courts have yet to address these issues definitively. And second, any answer will depend on the terms in a veritable patchwork quilt of hundreds of local, state, and federal laws forbidding discrimination by places of “public accommodation.” This makes it impossible to generalize.

A church must determine:

• Is the church a place of “public accommodation” under applicable local, state, or federal laws? Churches and other worship facilities are included in the definition of “public accommodation” under some public accommodation laws, even if they do not rent their property to nonmembers for weddings and other events, while other laws exclude churches from the definition of a place of public accommodation if their property is not rented to outside groups.
  
• What forms of discrimination are prohibited by places of public accommodation (for instance, is gender identity included)?
• Does the law contain an exemption for churches?
• If a church exemption exists, have all the conditions for the exemption been satisfied?
• Consider the scope of constitutional protections available to churches based on applicable judicial precedent.

Again, the answers to these questions will vary from jurisdiction to jurisdiction. It is likely that the courts will conclude that the greatest constitutional protection applies to churches that allow their premises to be used only by members. Further, it is less likely that such churches will meet the definition of a place of public accommodation.

However, any constitutional protection likely will be diminished or eliminated in the case of churches that rent their facilities to the general public as a revenue-raising activity. And, such churches are more likely to be considered places of public accommodation and subject to nondiscrimination laws that may include gender identity.

Some have argued that a church’s exemption from property taxation is a useful analogy in evaluating whether some uses of church property make the church a place of public accommodation under applicable state or local law. To illustrate, many churches allow their premises to be used by others at no charge. Does this transform the church into a place of public accommodation? Possibly not. Note that churches lose their exemption from property taxation in all 50 states if they rent their premises to outside groups in order to raise revenue. However, there is no impact on the church’s exemption from property taxation if they allow outside groups to use their property at no charge. So, churches that allow their premises to be used as a polling place, or by another congregation or community group, at no charge, ordinarily are not in danger of losing their exemption from property taxation.

The same argument could be made in evaluating a church’s status as a place of public accommodation. So long as it charges nothing for the use of its property by an outside group, it should not, on that basis alone, be deemed a place of public accommodation. The analogy is not perfect, but may be helpful. The argument is that no court has said a church loses its tax exemption due to allowing community groups to use its property at no charge, and the same should be true for public accommodation laws.

Church membership decisions

Would a church be exposed to legal liability if it denies membership to transgender individuals? In a landmark case in 1871, the Supreme Court of the United States ruled that "whenever the questions of discipline, or of faith, of ecclesiastical rule, custom, or law have been decided by the highest church judicatory to which the matter has been carried, the legal tribunals must accept such decisions as final, and as binding on them." Watson v. Jones, 80 U.S. 679 (1871).

A year later, the Supreme Court emphasized that it had "no power to revise or question ordinary acts of church discipline, or of excision from membership," nor to "decide who ought to be members of the church, nor whether the excommunicated have been regularly or irregularly cut off." Bouldin v. Alexander, 82 U.S. (15 Wall.) 131 (1872).

This conclusion was reaffirmed by the Supreme Court in 1976, when it ruled that churches "may establish their own rules and regulations for internal discipline and government, and to create tribunals for adjudicating disputes over these matters. When this choice is exercised and ecclesiastical tribunals are created to decide disputes over the government and direction of subordinate bodies, the Constitution requires that civil courts accept their decisions as binding upon them." Serbian Eastern Orthodox Diocese v. Milivojevich, 423 U.S. 696 (1976).

These cases provide strong support for the prerogative of churches to administer discipline in the manner they choose, and that such decisions will not be reviewable by the civil courts. But this conclusion pertains to the discipline of members. The authority of churches to discipline nonmembers is less certain.

For more information on terms, definitions, and pastoral approaches related to transgender individuals, see sister-publication Christianity Today ’s article “Understanding the Transgender Phenomenon” by Mark Yarhouse, a leading Christian scholar on gender dysphoria.