Glover v. Daniel Appendix

    No. 16-273

I n  T h e

Supreme Court of tfje Mniteti States;

G l o u c e s t e r  C o u n t y  S c h o o l  B o a r d ,
Petitioner,

v.

G.G., B y  H is  N e x t  F r ie n d  A n d  M o t h e r , 
D e ir d r e  G r im m ,

Respondent,

On Writ of Certiorari 
to the United States Court of Appeals 

for the Fourth Circuit

BRIEF OF NAACP LEGAL DEFENSE AND 
EDUCATIONAL FUND, INC. AND THE 

ASIAN AMERICAN LEGAL DEFENSE AND 
EDUCATION FUND AS AMICI CURIAE IN 

SUPPORT OF RESPONDENT

S h e r r il y n  I f il l  
Director-Counsel 

J a na i N e lso n  
Ch r is t in a  Sw a rn s  
M o n iq u e  L in -L u se  
D e u e l  R oss 
NAACP Legal Defense & 

Educational Fund, Inc. 
40 Rector St., FI. 5 
New York, NY 10006

Counsel for Amici Curiae

S u za n n e  B. Go ld b er g  
Counsel of Record 

Columbia Law School Sexuality 
and Gender Law Clinic 

435 W. 116th St.
New York, NY 10027 
(212) 854-0411 
sgoldberg@columbia. edu

P e t e r  K. St r is  
E l iz a b e t h  B r a n n e n  
Dana  B erk o w itz  
V icto r  O’C o n n e l l  
Stris & Maher LLP 
725 S. Figueroa St., Ste. 1830 
Los Angeles, CA 90017

(Additional Counsel On Inside Cover)



C oty M ontag 
J o hn  P a u l  S c h n a p p e r - 

Ca ster a s

NAACP Legal Defense & 
Educational Fund, Inc. 

1444 I Street NW 
Washington, DC 20005



1

TABLE OF CONTENTS
TABLE OF AUTHORITIES............................................ ii
INTEREST OF AM ICI CURIAE .....................................1
INTRODUCTION AND SUMMARY OF 
ARGUMENT................................................   3
ARGUMENT.................................................     6
I. THE PHYSICAL SEPARATION OF 

BATHROOMS BY RACE WAS 
CONTROVERSIAL AND HARM FUL.....................8

II. STATE OFFICIALS HAVE INVOKED FEARS 
ABOUT SEXUAL CONTACT AND PREDATION 
BASED ON ODIOUS STEREOTYPES TO 
JUSTIFY RACIAL SEGREGATION AS 
WELL AS CRIMINALIZATION OF LESBIAN
AND GAY INDIVIDUALS....................   13
A. Bathrooms.............................................................. 14
B. Swimming Pools......................................................16
C. Interracial M arriage..............................................18
D. Lesbian and Gay Criminalization and

Discrimination....................................................... 20
III. THIS COURT HAS STRUCK DOWN

PHYSICAL-SEPARATION RULES THAT 
IMPERMISSIBLY SOUGHT TO PROTECT 
SOME INDIVIDUALS FROM PERCEIVED 
DANGERS OR DISCOMFORT WITH OTHERS . 22
A. Public Recreational Facilities............................ ..22
B. Workplaces............................................................. 25
C. Residential Restrictions........................................ 27

CONCLUSION................................................................. 30



TABLE OF AUTHORITIES
Cases
Bostic v. Schaefer,

760 F.3d 352 (4th Cir. 2014)............................................2
Bowers v. Hardwick,

478 U.S. 186 (1986)......................................................... 20
Brown v. Bd. of Edue.,

347 U.S. 483 (1954).................................................passim
Brown v. Bd. of Edue.,

349 U.S. 294 (1955)............................................................9
Buchanan v. Warley,

245 U.S. 60 (1917)........................................................... 29
Buck v. Davis,

No. 15-8049, 2017 WL 685534
(U.S. Feb. 22, 2017)........................................................13

City of Cleburne v. Cleburne Living 
Ctr., Inc., 473 U.S. 432 (1985)......................21, 27, 28, 31

Conaway v. Deane,
932 A.2d 571 (Md. 2007).................................................. 2

Dawley v. City o f Norfolk,
260 F.2d 647 (4th Cir. 1958)........................................... 9

Dawson v. Mayor & City Council of Baltimore City,
220 F.2d 386 (4th Cir. 1955)...........................................24

Fay son v. Beard,
134 F. Supp. 379 (E.D. Tex. 1955)................................25

Fulmore v .M  & M  Transp. Servs., Inc.,
No. l:ll-CV-00389, 2014 WL 1691340
(S.D. Ind. Apr. 29, 2014).................................................13

Gifford v. McCarthy,
137 A.D.3d 30 (N.Y. App. Div. 2016)..............................2

ii



I ll

Glenn v. Brumby,
663 F.3d 1312 (11th Cir. 2011)....................................... 8

Goesaert v. Cleary,
335 U.S. 464 (1948).................................................. 26, 27

Hernandez v. Robles,
855 N.E.2d 1 (N.Y. 2006).............................. ................. 2

Holley v. City of Portsmouth,
150 F. Supp. 6 (E.D. Va. 1957).................................... 23

Holmes v. City o f Atlanta,
350 U.S. 879 (1955)........................................................23

Hunter v. Erickson,
390 U.S. 385 (1969)........................................................29

In  re Marriage Cases,
183 P.3d 384 (Cal. 2008)............................................... 2

Ingersoll v. Arlene’s Flowers,
No. 91615-2 (Wash. Feb. 16, 2017)................................ 2

In t’l Union v. Johnson Controls, Inc.,
490 U.S. 187 (1991).................................................. 25, 26

J  ackson v. Abercrombie,
585 F. App’x 413 (9th Cir. 2014).................................... 2

King v. City o f Montgomery,
168 So. 2d 30 (Ala. Ct. App. 1964)................................. 9

Korematsu v. United States,
323 U.S. 214 (1944)........................................................30

Latta v. Otter,
771 F.3d 456 (9th Cir. 2014)........................................... 2

Lawrence v. Texas,
539 U.S. 558 (2003).................................................. 20, 31

J  ackson v. Abercrombie,
585 F. App’x 413 (9th Cir. 2014).................................... 2



IV

Lonesome v. Maxwell,
123 F. Supp. 193 (D. Md. 1954)......................... 17,18, 25

Loving v. Commonwealth,
147 S.E.2d 78 (Va. 1966)............................................. 19

Loving v. Virginia,
388 U.S. 1 (1967)....................................................passim

Masterpiece Cakeshop, Inc. v. Colorado Civil Rights 
Comm’n, No. 15SC738, 2016 WL 1645027 
(Colo. App. Apr. 25, 2016)................................................2

M cLaurinv. Okla. State Regents for Higher Educ.,
339 U.S. 637 (1950)..........   1

Missouri ex rel. Gaines v. Canada,
305 U.S. 337 (1938)............................................................1

Moorhead v. City of Fort Lauderdale,
152 F. Supp. 131 (S.D. Fla. 1957).................................23

N aim  v. Naim,
87 S.E.2d 749 (Va. 1955).......................................... 19, 20

New Orleans City Park Improvement A ss’n  v.
Detiege, 252 F.2d 122 (5th Cir. 1958)...........................22

Newman v. Piggie Park Enters., Inc.,
256 F. Supp. 941 (D.S.C. 1966)....................................... 1

Obergefell v. Hodges,
135 S. Ct. 2584 (2015)............................................2, 5, 31

Patmore v. Sidoti,
466 U.S. 429 (1984)........................................................ 21

Perry v. 2 Schwarzenegger,
591 F.3d 1147 (9th Cir. 2010)..........................................2

Perry v. Schwarzenegger,
704 F. Supp. 2d 921 (N.D. Cal. 2010) 21



V

Phillips v. M artin Marietta,
400 U.S. 542 (1972).......................................................... 1

Price Waterhouse v. Hopkins,
490 U.S. 228 (1989)...........................     8

Regents of Univ. of California v. Bakke,
438 U.S. 265 (1978)........................................................... 9

Robinson v. State of Fla.,
378 U.S. 153 (1964)........................................................... 9

Rogers v. Lodge,
458 U.S. 613 (1982)......................................................... 13

Romerv. Evans,
517 U.S. 620 (1996).................................................... 2, 21

Rosa v. Park W. Bank & Trust Co.,
214 F.3d 213 (1st Cir. 2000)........................................... 8

Schwenk v. Hartford,
204 F.3d 1187 (9th Cir. 2000)......................................... 8

Shorter v. Hartford Fin. Servs. Grp., Inc.,
No. 3:03-CV-0149, 2005 WL 3536122
(D. Conn. Dec. 6,2005).................................................  13

Sipuel v. Bd. of Regents o f Univ. ofOkla.,
332 U.S. 631 (1948)................................. ........ ............... 1

Smith  v. City of Salem,
378 F.3d 566 (6th Cir. 2004).................................. ........ 8

Strauss v. Horton,
207 P.3d 48 (Cal. 2009)................................................... 2

Sweatt v. Painter,
339 U.S. 629 (1950).......................................................... 1

Tate v. Dep’t of Conservation & Dev., 
133 F. Supp. 53 (E.D. Va. 1955)...... 25



VI

Texas Dep’t of Hous. & Cmty. Affairs v. Inclusive
Communities Project, Inc.,
135 S. Ct. 2507 (2015)................................................5, 32

Turner v. Randolph,
195 F. Supp. 677 (W.D. Tenn. 1961).......................14,15

United States v. Virginia,
518 U.S. 515(1996)....................................................... .16

United States v. Windsor,
133 S. Ct. 2675 (2013)...................................................2

Ward v. City o f Miami,
151 F. Supp. 593 (S.D. Fla. 1957).................................23

Watson v. City of Memphis,
373 U.S. 526 (1963).................................................. 23, 24

White v. Fleming,
522 F.2d 730 (7th Cir. 1975)..........................................27

Willie v. Harris Cty.,
202 F. Supp. 549 (S.D. Tex. 1962).................................25

Wright v. Rockefeller,
376 U.S. 52 (1964)..........................................................  12

Statutes
Civil Rights Act of 1964,

Pub. L. No. 88-352, 78 Stat. 241 (1964)..............8,13, 31
Title IX, Education Amendments of 1972,

20 U.S.C. § 1681 et seq.................................................3, 5
Other Authorities
Adam Fairclough, Race and Democracy:

The Civil Rights Struggle in Louisiana,
1915-1972 (2008)..............................................................10



V ll

Barbara Maranzani, 9 Things You May Not 
Know About the Pentagon,
History.com, Jan. 15, 2013.............................................12

Br. of Appellee, Loving, 388 U.S. 1,1967 WL 113931 
(Mar. 20,1967) (No. 395)................................................19

Br. of Pet’r, Bowers, 478 U.S. 186,1985 WL 667939 
(Dec. 17,1985) (No. 85-140)......................   20

Br. of the National Association for the Advancement of 
Colored People as Amicus Curiae, Loving,
388 U.S. 1,1967 WL 113930 (Feb. 28,1967)
(Civ No. 395)................................................................... 19

C. J. Griffin, Workplace Restroom Policies in Light 
of New Jersey’s Gender Identity Protection,
61 Rutgers L. Rev. 409 (2009).....................................  15

Dorothy E. Roberts, Loving v. Virginia as a
Civil Rights Decision, 59 N.Y.L. Sch. L. Rev. 175 
(2014-2015)...................................................................   18

Dr. Martin Luther King Jr., “Some Things We 
Must Do,” Address Delivered at the Second 
Annual Institute on Nonviolence and Social 
Change at Holt Street Baptist Church 
(Dec. 5,1957).................................................................. 12

Gallup, In  U.S., 87% Approve of Black-White 
Marriage, vs. in  1958 (July 25, 2013).....................32

Jeff Wiltse, Contested Waters: A  Social History of 
Swimming Pools in America (2007)..... ...............  16,17

Katie Riley, Little Rock N ine’ Student: Transgender 
Bathroom Debate Is Part o f Civil Rights Fight,
Time, May 13, 2016........................................................ 10

LDF, Brown at 60: The Southern Manifesto and 
“Massive Resistance” to Brown......................................9



Vlll

Letter from John W Macy to the Mattachine 
Society of Washington (Feb. 25,1966)........................21

Margot Lee Shetterly, Hidden Figures: The 
American Dream and the Untold Story of the 
Black Women Mathematicians Who Helped 
W in the Space Race (2016)...........................................11

Nat’l Park Serv., U.S. Dep’t of the Interior, Civil 
Rights in America: Desegregation of Public 
Accommodations (2004, rev. 2009).......... ................... 11

Neal Katyal, Confession Of Error: The Solicitor 
General’s Mistakes During The Japanese- 
American Internment Cases, May 20, 2011...............30

Nick Haslam, How the psychology of public 
bathrooms explains the ‘bathroom bills ’,
Wash. Post, May 13,2016.............................................14

Oral Argument, Lawrence, 539 U.S. 558,
2003 WL 1702534 (Mar. 26, 2003) (No. 02-102)..........20

Phoebe Godfrey, Bayonets, Brainwashing, and 
Bathrooms: The Discourse o f Race, Gender, and 
Sexuality in the Desegregation of Little Rock’s 
Central High,
62 The Ark. Historical Soc’y 42 (2003)........................14

Press Briefing by Press Secretary Sean Spicer,
Feb. 23,2017......................................................................5

R.L. Carter, The Effect of Segregation and the 
Consequences of Desegregation: A  Social 
Science Statement, reprinted in 
37 Minn. L. Rev. 427 (1953)...........................................12

Raymond Arsenault, Freedom Riders: 1961 and the 
Struggle for Racial Justice (2011)................................ 10

Richard A. Wasserstrom, Racism and Sexism, in  
Race and Racism  (Bernard P. Boxill ed., 2001).........15



LX

Richard Kluger, Simple Justice: The History of 
Brown v. Board of Education and Black America’s 
Struggle for Equality (1975)............................................8

Roper Center for Public Opinion Research, Public 
Opinion on Civil Rights: Reflections on the Civil 
Rights Act o f 196k.......................................................... 32

Speaker Tim Moore (@NCHouseSpeaker), Twitter 
(Feb. 23, 2016 9:39 AM)................................................... 7

Tobias Barrington Wolff, Civil Rights Reform 
and the Body, 6 Harv. L. & Pol’y Rev. 201 (2012).....21

U.S. Dep’t of Health & Human Services, LGBT 
Youth: Experiences With Violence, Nov. 12, 2014.....31

Vernon E. Jordan Jr., Movies That Unite Us,
N.Y. Times, Feb. 19, 2017..............................................11

William M. Carter, Jr., The Thirteenth Amendment 
and Constitutional Change, 38 N.Y.U. Rev. L.
& Soc. Change 583 (2014).............................................  17



1

INTEREST OF AM ICI CURIAE1
The NAACP Legal Defense and Educational Fund, Inc. 

(LDF) is a non-profit civil rights legal organization that, 
for over 75 years, has fought to enforce the guarantee of 
equal protection and due process in the United States 
Constitution on behalf of victims of discrimination. See, 
e.g., Brown v. Bd, ofEduc., 347 U.S. 483 (1954); McLaurin 
v. Okla. State Regents for Higher Educ., 339 U.S. 637 
(1950); Sweatt v. Painter, 339 U.S. 629 (1950); Sipuel v. Bd. 
of Regents ofUniv. of Okla., 332 U.S. 631 (1948); Missouri 
ex rel. Gaines v. Canada, 305 U.S. 337 (1938).

Having advocated for integration throughout the 
country and in numerous aspects of public life—including 
access to public restrooms—LDF now writes to highlight 
the ways in which history is at risk of repeating itself. 
Although focused primarily on vindicating the 
constitutional rights of victims of racial discrimination, 
LDF has also successfully fought against discrimination 
on the basis of sex, see, e.g., Phillips v. Martin Marietta, 
400 U.S. 542 (1972), and in places of public accommodation, 
see, e.g., Newman v. Piggie Park Enters., Inc., 256 F. 
Supp. 941 (D.S.C. 1966), a ff d in relevant part and rev’d in  
part on other grounds, 377 F.2d 433 (4th Cir. 1967), affd  
and modified on other grounds, 390 U.S. 400 (1968).

1 Pursuant to Supreme Court Rule 37.6, counsel for amici curiae 
state that no counsel for a party authored this brief in whole or in part, 
and that no person other than amici, their members, or their counsel 
made a monetary contribution to the preparation or submission of this 
brief. Pursuant to Supreme Court Rule 37.3(a), counsel for amici 
curiae has obtained the consent of the parties to file this brief. 
Petitioner has given blanket consent in a letter filed with the Court, 
and Respondent has consented in an email addressed directly to 
counsel for amici curiae.



2

LDF has also participated as amicus curiae in cases 
across the nation about the rights of lesbian, gay, bisexual, 
transgender and queer (LGBTQ) individuals. See, e.g., 
Obergefell v. Hodges, 135 S. Ct. 2584 (2015); United States 
v. Windsor, 133 S. Ct. 2675 (2013); Romer v. Evans, 517 
U.S. 620 (1996); Bostic v. Schaefer, 760 F.3d 352 (4th Cir. 
2014); Jackson v. Abercrombie, 585 F. App’x 413 (9th Cir. 
2014); Lattav. Otter, 771 F.3d 456 (9th Cir. 2014); Perry v. 
2 Schwarzenegger, 591 F.3d 1147 (9th Cir. 2010); Ingersoll 
v. Arlene’s Flowers, No. 91615-2 (Wash. Feb. 16, 2017); 
Strauss v. Horton, 207 P.3d 48 (Cal. 2009); In  re Marriage 
Cases, 183 P.3d 384 (Cal. 2008); Conaway v. Deane, 932 
A.2d 571 (Md. 2007); Hernandez v. Robles, 855 N.E.2d 1 
(N.Y. 2006); Masterpiece Cakeshop, Inc. v. Colorado Civil 
Rights Comm’n, No. 15SC738, 2016 WL 1645027 (Colo. 
App. Apr. 25, 2016); Gifford v. McCarthy, 137 A.D.3d 30 
(N.Y. App. Div. 2016).

The Asian American Legal Defense and Education 
Fund (AALDEF), founded in 1974, is a national 
organization that protects and promotes the civil rights of 
Asian Americans. By combining litigation, advocacy, 
education, and organizing, AALDEF works with Asian 
American communities across the country to secure 
human rights for all. Asian Americans have been subject 
to overt discrimination and segregation by governmental 
agencies, often justified by racially-biased beliefs. The 
resolution of issues of discrimination against transgender 
students presented in this case will affect Asian Americans 
and all minority groups.

Am ici have a strong and enduring interest in advancing 
integration and ensuring that the protections of anti- 
discrimination laws apply with equal measure to every 
individual, and submit that their experience and 
knowledge will assist the Court in its resolution of the 
questions presented.



3

INTRODUCTION AND 
SUMMARY OF ARGUMENT

While this case involves complex issues of agency 
deference and the proper interpretation of Title IX of the 
Education Amendments of 1972, one fundamental 
question lies at its core: can state actors physically 
separate and restrict individuals in public places solely 
because they are perceived to be different based on 
unfounded fears and prejudices?

Time and time again, this Court has rightly said that the 
principle of equality under the law dictates that the answer 
to this question is no. Accordingly, this Court has made 
clear that it is unconstitutional for a state to physically 
separate people into different schools or bathrooms by 
their race, regardless of the quality of the respective 
facilities; to separate and prohibit people from enjoying 
the benefits of marital union because of race or sex; to 
separate and restrict people from neighborhoods based on 
race or disability; and/or to separate and exclude people 
from the workplace based on race or sex. The broad 
application of this principle is central to the enduring 
strength of liberty and equal protection.

Given the vital importance of equal access to public 
accommodations and amici's long experience challenging 
discrimination against disfavored groups—including 
discrimination justified by claims of “states’ rights”— 
amici register three core points in this brief:

First, there is a lengthy and troubling history of state 
actors using public restrooms and similar shared spaces to 
sow division and instill subordination. Not so long ago, 
bathrooms nationwide were designated “Colored Only” 
and “Whites Only.” A key lesson of that painful and 
ignoble era is that while private-space barriers like racially 
segregated bathrooms may have seemed to some like



4

minor inconveniences or insignificant sources of 
embarrassment, they were in fact a source of profound 
indignity that inflicted deep and indelible harms on 
individuals of both races, and society at large. This 
disreputable tradition of state and local governments 
enshrining fear or hostility toward a disfavored group of 
people into laws requiring their physical separation from 
others should encourage this Court to view with 
skepticism the rationales proffered by local officials here.

Second, state officials often justified physical separation 
in restroom facilities, swimming pools, and marriage by 
invoking unfounded fears about sexual contact and 
exploitation. As demonstrated below, the purported 
concerns about sexual predation currently used as a basis 
for excluding transgender students from school 
bathrooms uncomfortably echo those used to justify the 
separate bathrooms for racial minorities.

Third, certain physical-separation rules that were 
applied to African Americans were also justified as 
protectionist'—e.g., for the good of the African-American 
community and/or to protect African-Americans from 
harm that could arise from others’ feelings of discomfort. 
Eventually, these kinds of rules were rejected by both the 
courts and society at large because they conflict with the 
foundational constitutional principle that government 
shall not distinguish between people based on sex, race, or 
other arbitrary, perceived differences.

The arguments offered to defend the discriminatory 
singling out of G.G. are painfully similar to those that this 
Court long ago deemed to be insufficient to justify 
discrimination based on race. The proposition that G.G. 
should go back to using the “separate restroom,” Pet. 
App. 88a, parrots the functionalist logic that this Court 
discarded along with “separate but equal.”



5

The Trump Administration’s recent withdrawal of the 
guidance on transgender students and its description of 
bathroom access as a “states’ rights issue”2 only amplifies 
the disconcerting historical echoes in this case. State and 
local officials often invoked “states’ rights” as a basis for 
opposing this Court’s decisions and insulating prohibited 
discrimination from statutory and constitutional review. 
Indeed “states’ rights” was the frequent refrain of officials 
who fought against racial integration, including in 
bathrooms. Ultimately, however, the claim of “states’ 
rights” has no relevance to this Court’s interpretation of a 
federal statute—in this case Title IX—as states are bound 
by this Court’s interpretation of federal law.

We must not repeat the mistakes of the past. These all- 
too-familiar arguments—about sexual contact, predation, 
danger, and discomfort—remain both factually baseless 
and legally immaterial. Instead, the weight of precedent 
and the guarantee of equal protection inexorably support 
this Court in recognizing G.G.’s simple and inherent 
dignity by letting him use the boys’ bathroom with his 
peers.

In “striving to achieve our ‘historic commitment to 
creating an integrated society,”’ Texas Dep’t o f Hous. & 
Cmty. Affairs v. Inclusive Communities Project, Inc., 135 
S. Ct. 2507, 2525 (2015) (citation omitted), our nation has 
demonstrated a consistent capacity to move forward. 
Brown v. Board, Loving v. Virginia, and Obergefell v. 
Hodges powerfully demonstrate that forms of equality 
that were once inconceivable can, and do, become

2 See Press Briefing by Press Secretary Sean Spicer, Feb. 23,2017, 
https://www.whitehouse.gov/the-press-office/2017/02/23/press-briefm 
g-press-secretary-sean-spicer-2232017-15/ (“[Ilf a state wants to pass 
a law or rule [about transgender bathrooms] * * * that’s their right. 
But it shouldn’t be the federal government getting in the way of this.”).

https://www.whitehouse.gov/the-press-office/2017/02/23/press-briefm


6

indisputable. We are confident that the same will 
ultimately prove true for transgender students. The Court 
should affirm the decision below.

ARGUMENT
The Gloucester County School Board (“School Board”) 

has adopted a policy of singling out and physically 
separating certain students it perceives to be different 
based on an essential characteristic of their person. 
Specifically, nearly all students can use the bathroom that 
is consistent with their identity as male or female. 
However, G.G. and other transgender students3 are not 
permitted to use the bathroom that aligns with their 
gender identity. Instead, they are relegated to separate, 
individual bathrooms away from other students.

To justify such blatant and unabashed discrimination 
and differentiation among students of the same gender, 
the School Board and its supporters contend that allowing 
transgender students to use a bathroom consistent with 
their gender identity would endanger or violate the 
privacy of other students. But the claim of danger is 
demonstrably false, and the Board’s own actions 
undermine its purported concern for the privacy needs of 
non-transgender students vis-a-vis their transgender 
peers. At the same time that it excluded transgender 
students from the regular student bathrooms, the Board 
instituted changes within those bathrooms “to improve 
general privacy for all students, including adding or 
expanding partitions between urinals in male restrooms, 
adding privacy strips to the doors of stalls in all restrooms,

3 The School Board labels these students as having “gender identity 
issues.”



7

and constructing single-stall unisex restrooms available to 
all students.” Pet. App. 11a (emphasis added).4

In short, like other physical-separation rules in this 
tradition, the patina of legitimacy the School Board sought 
here by invocations of safety and privacy concerns 
disappears upon close examination and reveals instead 
discomfort, fear, and hostility toward transgender 
students because of their gender identity. Indeed, the 
decision below plainly described what prompted the rule: 
“Many of the speakers displayed hostility to G.G., 
including by referring pointedly to him as a ‘young lady.”’ 
Pet. App. 10a. “One speaker called G.G. a ‘freak’ and 
compared him to a person who thinks he is a ‘dog’ and 
wants to urinate on fire hydrants.” Pet. App. 11a. Neither 
discomfort nor hostility can justify disparate treatment by 
the state.

The remainder of this brief shows the connections 
between this policy and others that, in the name of safety, 
order, and/or privacy, sought impermissibly to rely on 
fear, discomfort, and hostility to impose physical 
separations between one group of people and another. 
When assessing the School Board’s claims here, therefore, 
it is especially important to consider the troubling history 
of physical-separation rules involving bathrooms, infra 
§ I, how unfounded fears of sexual predation have often 
been used to justify discrimination, infra § II, and how this 
Court and lower courts have struck down physical- 
separation rules in these and various other contexts, 
recognizing the discomfort and unsupported fears behind 
them, infra § III.

4 See also Speaker Tim Moore (@NCHouseSpeaker), Twitter (Feb. 
23, 2016 9:39 AM), https://twitter.com/NCHouseSpeaker/status/ 
702140832867074052/ (statement by North Carolina Speaker of the 
House that transgender bathroom access posed “major public safety 
issue.”).

https://twitter.com/NCHouseSpeaker/status/


8

I. THE PHYSICAL SEPARATION OF BATH­
ROOMS BY RACE WAS CONTROVERSIAL AND 
HARMFUL.

The School Board asserts that this case is novel because 
it involves transgender students in restrooms.5 But history 
reveals that the exclusion of transgender students from 
bathrooms relies on a time-tested tactic of seizing upon 
sensitivities regarding bathrooms to sow division and 
discord.

The archetypal example is the physical separation of 
bathrooms by race, a defining feature of the Jim Crow era. 
“Public washrooms and water fountains were rigidly 
demarcated to prevent contaminating contact with the 
same people who cooked the white South’s meals, cleaned 
its houses, and tended its children.” Richard Kluger, 
Simple Justice: The History of Brown v. Board of 
Education and Black America’s Struggle for Equality 86 
(1975). Because the courts and the country now see that 
type of separation of bathrooms as invidious and 
unconstitutional, it is worth examining the history and 
harms involved.

Before the Civil Rights Act of 1964, laws requiring the 
racial segregation of bathrooms were widespread. 
Typifying these rules was a Florida Board of Health 
provision stating that “‘where colored persons are 
employed or accommodated’ separate toilet and lavatory 
rooms must be provided.” Robinson v. State o f Fla., 378

5 In actuality, protections for transgender persons are not new, as 
federal law prohibits discrimination on the basis of sex, including on 
the basis of gender stereotypes. See, e.g., Price Waterhouse v. 
Hopkins, 490 U.S. 228, 251 (1989); Glenn v. Brumby, 663 F.3d 1312, 
1316-19 (11th Cir. 2011); Sm ith  v. City of Salem, 378 F.3d 566, 573-75 
(6th Cir. 2004); Rosa v. Park W. Bank & Trust Co., 214 F.3d 213, 215- 
16 (1st Cir. 2000); Schwenk v. Hartford, 204 F.3d 1187, 1201-02 (9th 
Cir. 2000).



9

U.S. 153, 156 (1964) (footnote omitted). An Alabama 
ordinance likewise specified that in workplaces, public 
accommodations, and in certain “multiple dwellings,” 
“separate water closets or privy seats within completely 
separate enclosures shall be provided for each race * * * 
King v. City of Montgomery, 168 So. 2d 30, 31 (Ala. Ct. 
App. 1964).

Among other settings, some courthouses physically 
separated bathroom users based on race. In Dawley v. 
City of Norfolk, 260 F.2d 647 (4th Cir. 1958), cert, denied, 
359 U.S. 935 (1959), for example, a Black lawyer sought to 
enjoin a Virginia city “from maintaining certain signs in 
the State courthouse * * * indicating the segregation of 
the races in the public restrooms maintained in the 
building for men and women.” At the time, the federal 
courts declined to intervene, observing simply that “[t]he 
matter was one which affected the internal operations of 
the court of the State.” Ibid. Similar segregation occurred 
in other parts of government, as well. “Under President 
[Woodrow] Wilson, the Federal Government began to 
require segregation in Government buildings; desks of 
Negro employees were curtained off [and] separate 
bathrooms * * * were provided * * * .” Regents ofUniv. of 
California v. Bakke, 438 U.S. 265,394 (1978).

In the 1950s, still more of these laws governing 
bathrooms were enacted or reinforced in response to this 
Court’s rulings in Brown and Brown II, as state officials 
tried to galvanize resistance to integration. “By 1956, 
Senator [Harry] Byrd [of Virginia] had created a coalition 
of nearly 100 Southern politicians to sign on to his 
‘Southern Manifesto,’ an agreement to resist the 
implementation of Brown.” LDF, Brown at 60: The 
Southern Manifesto and “Massive Resistance” to Brown, 
http://www.naacpldf.org/brown-at-60-southern-manifesto

http://www.naacpldf.org/brown-at-60-southern-manifesto


10

-and-massive-resistance-brown/. That same year, legisla­
tors in Louisiana passed a series of bills intended to flout 
federal integration mandates, including by requiring 
segregation in bathrooms. Adam Fairclough, Race and 
Democracy: The Civil Rights Struggle in  Louisiana, 
1915-1972, 205 (2008). See also Katie Riley, ‘Little Rock 
N ine’ Student: Transgender Bathroom Debate Is Part of 
Civil Rights Fight, Time, May 13, 2016, http://time.com/ 
4329931/transgender-bathroom-obama-law-debate-civil- 
rights/ (comparing personal experience of integrating 
school post-Brown in 1957 with that of transgender 
students today).

Through the 1960s, physical-separation rules about 
bathrooms persisted, were often enforced by violence and 
sparked intense political conflict. For example, in 1961, a 
group of Freedom Riders embarked on a bus trip to 
commemorate the Brown decision and faced beatings 
when they attempted to use whites-only restrooms and 
other segregated facilities in South Carolina. 
Birmingham’s Commissioner of Public Safety, “Bull” 
Connor, stated that “if the Negros attempt to use the 
restroom in the [bus] depot, Klansman are to beat them in 
the rest room and ‘make them look like a bulldog got a hold 
of them’; then remove the clothing of the victim and carry 
the clothing away. If the nude individual attempts to leave 
the restroom, he will be immediately arrested and it will 
be seen that this person is sent to the penitentiary.” 
Raymond Arsenault, Freedom Riders: 1961 and the 
Struggle for Racial Justice 92 (2011). When the Freedom 
Riders reached Alabama, a mob attacked them so brutally 
that it resulted in hospitalizations and the journey had to 
be cut short. In 1966, in Tuskegee, Alabama, “a white gas 
station attendant shot and killed, Sammy Younge, Jr., a 
black Navy veteran and member of [the Student 
Nonviolent Coordinating Committee], as he attempted to 
use a ‘white’ toilet.” Nat’l Park Serv., U.S. Dep’t of the

http://time.com/


11

Interior, Civil Rights in America: Desegregation of 
Public Accommodations 1, 79-80 (2004, rev. 2009).

These state laws requiring separate facilities visited an 
immeasurable indignity on African Americans. To avoid it, 
many Black parents instructed their children to use the 
facilities at home and avoid using segregated public 
facilities. See, e.g., Vernon E. Jordan Jr., Movies That 
Unite Us, N.Y. Times, Feb. 19,2017, at SR3, Often the use 
of segregated bathrooms involved walking long distances, 
in front of others, which further underscored the 
separateness and shame involved. See Margot Lee 
Shetterly, Hidden Figures: The American Dream and the 
Untold Story of the Black Women Mathematicians Who 
Helped Win the Space Race 108 (2016) (“It was the 
proximity to professional equality that gave the slight [of 
having no “Colored” restrooms in the building] such a 
surprising and enduring sting. * * * It was difficult enough 
to rise above the silent reminders of Colored signs on the 
bathroom doors and cafeteria tables. But to be confronted 
with the prejudice so blatantly, there in the temple to 
intellectual excellence and rational thought, by something 
as mundane, so ridiculous, so universal as having to go to 
the bathroom [was especially hurtful] * * * .”).

Dr. Martin Luther King, Jr. eloquently recounted his 
experience with segregated bathrooms:

I looked over and saw another sign which said “Men.” 
“Colored Men” and “Men.” So I thought I was a man 
[and I used the “Men’s” room]. * * * But as soon as I 
walked up, there was a colored man in there; he was 
working in there [as an attendant]. * * * [H]e looked 
over at me and said: “The, the, the colored room is 
over there.” I didn’t say anything; I just stood there. 
But he came up and touched me, and said: ‘You belong 
over there; that’s where the colored room is.” I said: 
“Are you speaking to me?” ‘Yes, sir, yes, sir. You see,



12

the colored room is over there.” I said: “Well, I ’m 
going to stay here, right here.”

Dr. Martin Luther King Jr., “Some Things We Must Do,” 
Address Delivered at the Second Annual Institute on 
Nonviolence and Social Change at Holt Street Baptist 
Church (Dec. 5,1957). In the adjoining passage, Dr. King 
highlighted why this sort of experience was so damaging 
and painful:

Segregation not only makes for physical 
inconveniences, but it does something spiritually to 
an individual. It distorts the personality and injures 
the soul. Segregation gives the segregator a false 
sense of superiority, and it gives the segregated a 
false sense of inferiority. But in the midst of this, we 
must maintain a sense of dignity and self-respect.

Ibid. Consistent with Dr. King’s observation, amicus 
LDF, in cases as far back as Brown, presented evidence 
demonstrating that segregation—including in
restrooms—hurts not just minorities but also majority 
groups. See R.L. Carter, The Effect of Segregation and, the 
Consequences of Desegregation: A  Social Science 
Statement, reprinted in 37 Minn. L. Rev. 427 (1953). See 
also Wright v. Rockefeller, 376 U.S. 52, 69 (1964) 
(Goldberg, J., dissenting) (“[T]he Court’s decisions since 
Brown * * * hold that harm to the Nation as a whole and 
to whites and Negroes alike inheres in segregation.”).

Some of the vestiges of segregated bathrooms persist to 
this day. See, e.g., Barbara Maranzani, 9 Things You May 
Not Know About the Pentagon, History.com, Jan. 15,2013, 
http://www.history.com/news/9-things-you-may-not-know 
-about-the-pentagon/ (Pentagon still has twice as many 
bathrooms as necessary because it was designed to 
separate Black and white employees). These “vestiges of 
discrimination—although clearly not the most pressing

http://www.history.com/news/9-things-you-may-not-know


13

problems facing Black citizens today—are a haunting 
reminder of an all too recent period of our Nation’s 
history.” Rogers v. Lodge, 458 U.S. 613, 632 n.l (1982) 
(Stevens, J., dissenting) (noting, almost two decades after 
the Civil Rights Act of 1964, that “faded paint over 
restroom doors [at the Burke County, Georgia courthouse] 
does not entirely conceal the words ‘colored’ and ‘white’”).

The injuries arising from segregation remain hard to 
cure. Even today, “powerful racial stereotype^]—that of 
black men as ‘violence prone,”’ Buck v. Davis, No. 15-8049, 
2017 WL 685534, at *15 (U.S. Feb. 22, 2017), or that 
“African-American men want to rape white women,” 
Fulmore v. M  & M  Transp. Sews., Inc., No. Lll-CV- 
00389, 2014 WL 1691340, at *8 (S.D. Ind. Apr. 29, 2014), 
have a detrimental effect on the treatment of Black people. 
See also Shorter v. Hartford Fin. Sews. Grp., Die., No. 
3:03-CV-0149, 2005 WL 3536122, at *4 (D. Conn. Dec. 6, 
2005).

II. STATE OFFICIALS HAVE INVOKED FEARS 
ABOUT SEXUAL CONTACT AND PREDATION 
BASED ON ODIOUS STEREOTYPES TO 
JUSTIFY RACIAL SEGREGATION AS WELL AS 
CRIMINALIZATION OF LESBIAN AND GAY 
INDIVIDUALS.

Misplaced concerns about sexual contact and predation 
have long been a central dimension of the rationales 
proffered to justify rules and practices that physically 
separate people based on class, sex, and race. Today, even 
in the intimate context of bathing facilities, these 
rationales and the separations they sought to justify are 
widely understood to reflect nothing more than 
discomfort, dislike, and fear, all impermissible bases for 
government action. In resolving G.G.’s case, this Court 
should consider how state officials have impermissibly 
invoked similar anxieties about sexual exploitation in the



14

context of race-based separation of bathrooms, infra 
§ II.A, and swimming pools, infra § II.B, interracial 
marriage, infra § III.C, and other laws governing lesbian 
and gay individuals, infra § III.D.

A. Bathrooms
Speculation and stereotypes about sexual contact and 

disease were used to justify the racial segregation of 
bathrooms. A 1957 Arkansas newspaper advertisement 
entitled, “[w]hen you start race-mixing where are you 
going to stop?” featured the loaded question “[bjecause of 
the high venereal disease rate among Negroes * * * [will] 
white children be forced to use the same rest room and 
toilet facilities * * * ?” Phoebe Godfrey, Bayonets, 
Brainwashing, and Bathrooms: The Discourse of Race, 
Gender, and Sexuality in the Desegregation of Little 
Rock’s Central High, 62 The Ark. Historical Soc’y 42, 52 
(2003). Public fliers hawked “uncontested medical 
opinions” that “girls under 14 year of age are highly 
susceptible to disease if exposed to the germs through 
seats, towels, books, and gym clothes.” Id. at 63-64. When 
President Franklin Roosevelt eliminated racial 
segregation in bathrooms, “white female government 
workers staged a mass protest, fretting that they might 
catch venereal diseases if forced to share toilets with black 
women.” Nick Haslam, How the psychology of public 
bathrooms explains the ‘bathroom bills’, Wash. Post, May 
13,2016, https://www.washingtonpost.com/posteverything 
/wp/2016/05/13/how-the-psychology-of-public-bathrooms- 
explains-the-bathroom-bills/?utm_term= .089d65aa02f6/.

These beliefs, of course, had no basis in reality. For 
example, in the landmark case of Turner v. Randolph, 195 
F. Supp. 677 (W.D. Tenn. 1961), Black residents of 
Tennessee, represented by Thurgood Marshall and 
others, challenged segregation in public libraries. The City 
of Memphis responded by voluntarily integrating certain

https://www.washingtonpost.com/posteverything


15

facilities, but “expressly reserved” the question of 
“whether [the City] should be required to desegregate 
restrooms and toilet and lavatory facilities.” Id. at 678. “In 
an apparent effort to support [segregation in bathrooms] 
as a reasonable and valid exercise of the police power, the 
[City] introduced proof * * * that the incidence of venereal 
disease is much higher among Negroes * * * than among 
members of the white race.” Id. at 679-80. But the court 
flatly rejected that argument and discarded testimony of 
state public health officials, finding that “no scientific or 
reliable data have been offered to demonstrate that the 
joint use of toilet facilities * * * would constitute a serious 
danger to the public health, safety or welfare.” Id. at 680. 
Moreover, the court reasoned that “in the absence of 
proof, one would be led to believe that venereal disease 
would not be expected to occur [differently] to any 
appreciable extent among” different races. Ibid.

Trepidations regarding contact and “contamination” in 
the small setting of a restroom were also often offered as 
justifications for segregating these facilities. See, e.g., C.J. 
Griffin, Workplace Restroom Policies in Light of New 
Jersey’s Gender Identity Protection, 61 Rutgers L. Rev. 
409, 423 (2009) (discussing privacy, cleanliness and 
morality rationales for race-based bathroom rules). As one 
scholar observed, “[t]he point of maintaining racially 
segregated bathrooms * * * was to make sure that blacks 
would not contaminate bathrooms used by whites.” 
Richard A. Wasserstrom, Racism and Sexism, in Race 
and Racism  319 (Bernard P. Boxill ed., 2001). See also 
Griffin, supra, 61 Rutgers L. Rev. at 424 (stating that 
racially segregated facilities “taught both whites and 
blacks that certain kinds of contacts were forbidden 
because whites would be degraded by the contact with the



16

blacks”)-6 Such arguments about unduly close contact in 
bathrooms were plainly pretextual, and vague assertions 
about discomfort or privacy could hardly justify facially 
disparate treatment on the basis of sex. See, e.g., United 
States v. Virginia, 518 U.S. 515, 540-46 (1996).

B. Swimming Pools
Similar sexual fears were invoked in the closely related 

context of swimming pools. Long before racial separation 
was deemed “natural” in swimming facilities, sex 
separation was the norm. “During the nineteenth century, 
swimming divided along social lines, the most conspicuous 
being gender.” Jeff Wiltse, Contested Waters: A  Social 
History of Swimming Pools in America 2 (2007). 
“Because of [a] combination of factors—bodily exposure, 
physical contact, and difficulty of surveillance—public 
officials demanded that males and females swim 
separately.” Ibid. Beginning in the 1920s, public officials 
began to allow men and women to swim together, id. at 89, 
apparently having decided that the privacy and safety 
concerns that had supported the previous physical- 
separation rule were not borne out. Yet municipal officials 
relied on those same invalidated concerns to enforce 
separation based on race: “When cities permitted males 
and females to swim together, white swimmers and public 
officials suddenly attempted to separate blacks from 
whites.” Id. at 124.

6 Concerns about interpersonal discomfort were also sometimes 
cloaked in terms of commerce. A Maryland movie theater, which held 
a long-term lease from the local government, argued that its racially 
segregated seating and bathrooms were “the only policy [the 
company] could profitably pursue.” Jones v. Marva Theatres, Inc., 180 
F. Supp. 49, 50 (D. Md. 1960). See also Robinson v. State o f Fla., 378 
U.S. 153,154 (1964) (business arguing that eliminating the separation 
rule “would be ‘very detrimental to our business’ because of the 
objections of white customers”).



17

As the concerns that prompted sex segregation were 
recast to justify race-based rules, fears about sexual 
predation came to the fore. “[NJorthern whites in general 
objected to black men having the opportunity to interact 
with white women at such intimate and erotic public 
spaces” and “feared that black men would act upon their 
supposedly untamed sexual desire for white women by 
touching them in the water and assaulting them with 
romantic advances.” Wiltse, supra, at 124; see generally 
William M. Carter, Jr., The Thirteenth Amendment and 
Constitutional Change, 38 N.Y.U. Rev. L. & Soc. Change 
583,588 (2014) (“[Stereotypes about black cleanliness and 
black dangerousness—particularly the perceived threat of 
sexual violence to white women—and the stigma attached 
to commingling of the races in intimate settings such as 
swimming pools had produced in whites a deep and 
visceral aversion to sharing public swimming facilities 
with blacks.”).

In the mid-1950s, the federal district court that upheld 
Maryland’s racial separation of bathing facilities echoed 
these concerns, observing that the “degree of racial feeling 
or prejudice in this State at this time is probably higher 
with respect to bathing, swimming and dancing than with 
any other interpersonal relations except direct sexual 
relations.” Lonesome v. Maxwell, 123 F. Supp. 193,202 (D. 
Md. 1954), rev’d sub nom. Dawson v. Mayor & City 
Council of Baltimore City, 220 F.2d 386 (4th Cir. 1955), 
affd, 350 U.S. 877 (1955) (citation omitted). By contrast, 
the court took pains to point out that the state parks 
agency had declined to segregate other facilities within the 
park, limiting its physical-separation rules to bath houses 
and beaches and adding that the state itself had “steadily 
broadened the permissible and customary fields of 
interracial activities.” 123 F. Supp. at 202.



18

Yet according to the court, swimming facilities and bath 
houses were a step too far because they “are for all ages, 
and are practically unsupervised, except by young life 
guards.” Lonesome, 123 F. Supp. at 203. The court 
acknowledged that the separation operated, for the Black 
plaintiffs, as a barrier to “social integration with white 
people.” Id. at 204. The court added: “The natural thing in 
Maryland at this time—whether at private or public 
beaches or pools—is for Negroes to desire and choose to 
swim with Negroes and whites with whites, and for the 
proprietors of the facilities—whether public or private— 
to provide separate bathhouses, beaches and pools for the 
two races.” Id. at 205.

C. Interracial Marriage
The prospect of interracial marriage was long exploited 

as the ultimate fear in the Jim Crow era and was closely 
intertwined with the maintenance of segregated schools 
and the physical-separation rules imposed on otherwise 
shared spaces. Indeed, “a primary reason for segregated 
schooling was to foreclose the interracial intimacy that 
might be sparked in integrated classrooms.” Dorothy E. 
Roberts, Loving v. Virginia as a Civil Rights Decision, 59 
N.Y.L. Sch. L. Rev. 175,176 (2014-2015).

The specter of sexual predation ran throughout the 
discourse around anti-miscegenation laws. The New York 
Times described as the “ultimate question” of the Loving 
v. Virginia case: “Would you like to have your daughter 
marry a Negro?” Roberts, supra, at 188. Contempo­
raneous news coverage confirmed the intense anxiety 
around cross-racial sexual contact, especially between 
Black men and white women. Id. at 176 n.6 (quoting a 1961 
L.A. Times article: “Miscegenation is a deep-rooted fear 
and unquestionably one of the foremost concerns of the 
Southern citizen.”).



19

Loving challenged head-on the deep-rooted stereotypes 
and fears that underlay this separation and subordination 
of African Americans in marriage. As the case made its 
way to this Court, it was clear that the physical division of 
races was a central legal issue. When Mr. and Ms. Loving 
were sentenced for violating Virginia’s “Racial Integrity 
Act,” the trial judge proclaimed: “Almighty God created 
the races white, black, yellow, malay and red, and he 
placed them on separate continents * * * . The fact that he 
separated the races shows that he did not intend for the 
races to mix.” Loving v. Virginia, 388 U.S. 1, 3 (1967) 
(emphasis added). Likewise, when the Virginia Supreme 
Court upheld the state ban, it relied primarily on an earlier 
decision, Naim  v. Naim, which involved an Asian- 
American and white couple and held that states had a right 
to “preserve * * * racial integrity” and prevent a “mongrel 
breed of citizens,” “the obliteration of racial pride” and the 
“corruption of blood [that would] weaken or destroy its 
citizenship.” 87 S.E.2d 749, 756 (Va. 1955), cited in Loving 
v. Commonwealth, 147 S.E.2d 78, 80 (Va. 1966). Virginia 
defended its ban, inter alia, on the grounds that 
“intermarriage constitutes a threat to society,” citing 
purportedly scientific evidence “that the crossing of 
distinct races is biologically undesirable and should be 
discouraged.” See Br. of Appellee, Loving, 388 U.S. 1,1967 
WL 113931, at *44, 48 (Mar. 20, 1967) (Civ. No. 395). 
Before this Court, LDF pointed out that “laws against 
interracial marriage are among the last of such racial laws 
with any sort of claim to viability. [They] are the weakest, 
not the strongest, of the segregation laws.” Br. of the 
National Association for the Advancement of Colored 
People as Amicus Curiae, Loving, 388 U.S. 1, 1967 WL 
113930, at *14 (Feb. 28,1967) (No. 395).

This Court struck down Virginia’s law because it was 
“designed to maintain White Supremacy.” Loving, 388 
U.S. at 11. In so doing, the Court rejected Virginia’s post-



20

hoc and pretextual rationalizations for enshrining 
separate categories of marriages. Ibid. (“There is patently 
no legitimate overriding purpose independent of invidious 
racial discrimination which justifies this classification.”). 
Loving refused to credit Naim ’s pseudo-scientific theories 
about the social and genetic consequences of interracial 
sexual contact, casting them aside as nothing more than 
“an endorsement of the doctrine of White Supremacy.” Id. 
at 7.

D. Lesbian and Gay Criminalization and 
Discrimination

Finally, concerns about sexual contact and predation 
were also used to justify the criminalization of gay and 
lesbian individuals and their physical exclusion from 
certain environments. In Bowers v. Hardwick, 478 U.S. 
186 (1986), for instance, Georgia argued that
homosexuality “is marked by * * * a disproportionate 
involvement with adolescents and, indeed, a possible 
relationship to crimes of violence” as well as the 
“transmission of * * * diseases.” Br. of Pet’r, Bowers, 1985 
WL 667939 (Dec. 17,1985) (Civ. No. 85-140). In Lauwence 
v. Texas, oral argument featured discussion of whether “a 
State could not prefer heterosexuals or homosexuals to 
teach Kindergarten * * * [because of the justification that 
children would be harmed because they] might be induced 
to—to follow the path of homosexuality.” 2003 WL 
1702534 at *20 (2003). See also Laivrence, 539 U.S. at 602 
(Scalia, J., dissenting) (“Many Americans do not want 
persons who openly engage in homosexual conduct 
as * * * scoutmasters for their children [or] as teachers in 
their children’s schools.”). Compare Br. of Pet’r, 
Gloucester Cty. SchoolBd. v. G.G., 2017 WL 65477, at *37, 
40 (filed Jan. 3, 2017) (arguing that some people may 
exploit transgender bathroom access for “less worthy



21

reasons,” which might create a “hostile environment” for 
sexual assault victims).

Likewise, rationales offered to support excluding openly 
gay and lesbian individuals from both military and civil 
service echoed fears of sexual predation. Arguments 
expressed the concern that “showering bodies would be 
subjected to unwanted sexual scrutiny.” Tobias 
Barrington Wolff, Civil Rights Reform and the Body, 6 
Harv. L. & Pol’y Rev. 201,227,228 (2012). Decades earlier, 
the chair of the Civil Service Commission similarly 
rejected a request to end a ban on openly gay people from 
federal civil service jobs, pointing to the “apprehension” 
other employees would feel about sexual advances and 
assault and related concerns regarding “on-the-job use of 
the common toilet, shower and living facilities.” Perry v. 
Schwarzenegger, 704 F. Supp. 2d 921,981 (N.D. Cal. 2010), 
affd, 671 F.3d 1052 (9th Cir. 2012), vacated sub nom. 
Hollingsworth v. Perry, 133 S. Ct. 2652 (2013) (quoting 
Letter from John W Macy to the Mattachine Society of 
Washington (Feb. 25,1966) at 2-4).

As this Court has made clear, dislike of or discomfort 
around gays and lesbians is not a legitimate justification 
for discrimination. Romer v. Evans, 517 U.S. at 631-32. 
The Equal Protection Clause prohibits the government 
from discriminating against one group in order to 
accommodate the prejudices or discomfort of another. 
“The Constitution cannot control such [private] prejudices 
but neither can it tolerate them. Private biases may be 
outside the reach of the law, but the law cannot, directly or 
indirectly, give them effect.” Patmore v. Sidoti, 466 U.S. 
429, 433 (1984). See also City of Cleburne v. Cleburne 
Living Center, Inc., 473 U.S. 432, 448 (1985).

All told, the articulated rationales offered for physically 
separating transgender students in this case are 
comparable in many respects to those that were used to



2 2

justify racially segregated bathrooms and shamming pools 
or the criminalization or exclusion of gays and lesbians. 
This Court must treat the arguments today with similar 
skepticism.
III. THIS COURT HAS STRUCK DOWN PHYSICAL- 

SEPARATION RULES THAT IMPERMISSIBLY 
SOUGHT TO PROTECT SOME INDIVIDUALS 
FROM PERCEIVED DANGERS OR DIS­
COMFORT WITH OTHERS.

Viewed more broadly, the bathroom-exclusion rule here 
fits within a troubling tradition of local and state 
governments justifying the physical separation of certain 
groups from others under the guise of providing 
protection or avoiding discomfort. By excluding a subset 
of people from a setting where they would otherwise be 
present, these rules have discriminated impermissibly and 
have been repudiated both by courts and society at large. 
This is true regarding recreational facilities, infra § III.A, 
workplaces, infra § III.B, and housing, infra § III.C.

A. Public Recreational Facilities
Local and state governments have imposed group-based 

restrictions on the use of recreational facilities—like 
public parks, golf courses, and baseball and football fields, 
among others—on the grounds of avoiding discomfort or 
protecting the public.

For example, New Orleans urged that the Court’s 
rationale in Brown v. Board should not carry over to its 
rule excluding Black plaintiffs from the city’s public golf 
course and park facilities. The city claimed that Brown 
was “based on psychological considerations not here 
applicable.” New Orleans City Park Improvement A ss’n  
v. Detiege, 252 F.2d 122,123 (5th Cir. 1958), ajfd, 358 U.S. 
54 (1958). This Court called the argument “completely 
untenable.” Ibid. Similarly, lower courts rejected a



23

number of related physical-separation rules in public 
recreational facilities.7

Notably, when the City of Memphis highlighted safety 
as the reason for delaying the integration of public parks, 
this Court refused to accept the purported justification at 
face value. Watson v. City o f Memphis, 373 U.S. 526, 535- 
36 (1963) (“It is urged that this proposed segregation will 
promote the public peace by preventing race conflicts.”); 
see also id. at 535 (describing the City’s contention that 
“gradual desegregation on a facility-by-facility basis is 
necessary to prevent interracial disturbances, violence, 
riots, and community confusion and turmoil”).

Instead, the Court stated that “neither the asserted 
fears of violence and tumult nor the asserted inability to 
preserve the peace was demonstrated at trial to be 
anything more than personal speculations or vague 
disquietudes of city officials.” Watson, 373 U.S. at 536. 
Indeed, the Court recognized that while the police chief 
had testified about “general predictions” of threatened 
violence, he “gave no concrete indication of any inability of 
authorities to maintain the peace.” Ibid. The Court also 
concluded: “There is no indication that there had been any 
violence or meaningful disturbances when other

7 See Holmes v. City of Atlanta, 350 U.S. 879 (1955) (rejecting a 
racial-separation rule on city golf courses); Ward v. City of Miami, 
151 F. Supp. 593 (S.D. Fla. 1957) (finding city law restricting African 
Americans’ use of golf courses to one day per week unconstitutional); 
Holley v. City of Portsmouth, 150 F. Supp. 6 (E.D. Va. 1957) 
(extending a temporary injunction against a city law restricting 
African Americans’ use of golf courses to one day per week); 
Moorhead v. City of Fort Lauderdale, 152 F. Supp. 131 (S.D. Fla. 
1957), affd, 248 F.2d 544 (5th Cir. 1957) (rejecting Fort Lauderdale’s 
law that denied access to a public golf course based on race).



24

recreational facilities had been desegregated. In fact, the 
only evidence in the record was that such prior transitions 
had been peaceful.” Ibid, (footnote omitted). This is 
especially important in the context of the instant case, 
where the School Board identified concerns about safety 
of students, Pet. App. 10a, 26a, but similarly offered no 
factual evidence whatsoever to support its position.

In addition, the Court in Watson observed, “there was 
no factual evidence to support the bare testimonial 
speculations that authorities would be unable to cope 
successfully with any problems which in fact might arise 
or to meet the need for additional protection should the 
occasion demand.” 373 U.S. at 536-37. School officials here, 
charged already with responsibility for keeping 
bathrooms safe for their students, have not indicated, 
other than in a vague, nonfactual manner, that the 
inclusion of transgender students in the bathrooms that 
conform to those students’ gender identity will unduly tax 
their ability to perform this function.

More broadly, arguments about danger to and 
discomfort of the public were also sometimes offered to 
justify segregation in public swimming facilities, in 
addition to the sexualized fears discussed above, supra 
§ II.8 But however the rationale was couched, courts

8 Baltimore and Maryland argued, for example, that “preservation 
of order within the parks” and the authorities’ responsibility “to avoid 
any conflict which might arise from racial antipathies” justified their 
insistence on racial separation for use of these facilities. Dawson v. 
Mayor & City Council o f Baltimore City, 220 F.2d 386, 387 (4th Cir. 
1955), ajfd  per curiam, 350 U.S. 877 (1955). They advanced another 
discomfort-focused objective as well, urging that ‘“the greatest good 
of the greatest number’” of both Black and white citizens, on the view 
that most individuals, regardless of race, “are more relaxed and feel 
more at home among members of their own race than in a mixed



25

around the country rejected such physical-separation 
rules. See, e.g., Willie v. Harris Cty., 202 F. Supp. 549 
(S.D. Tex. 1962) (rejecting racial-separation rule in city 
parks); Fay son v. Beard, 134 F. Supp. 379 (E.D. Tex. 1955) 
(same); Tate v. Dep’t of Conservation & Dev., 133 F. Supp. 
53 (E.D. Va. 1955), affd, 231 F.2d 615, (4th Cir. 1956), cert, 
denied, 352 U.S. 838 (1956) (rejecting denial of access to 
state parks based on race even when conducted by private 
actors acting on a lease).

B. Workplaces
In the employment context, states and others have 

previously sought to rely on protectionist rationales for 
physically separating or excluding particular groups of 
people from certain workspaces. These physical- 
separation rules have similarly come to be understood as 
fundamentally impermissible.

This Court has previously expressed skepticism toward, 
and ultimately rejected, for example, a private employer’s 
rule forbidding women of childbearing age from working 
in certain parts of its factories where men were permitted 
to work. See In t’l Union v. Johnson Controls, Inc., 490 
U.S. 187 (1991). The purported interest—in protecting the 
health of women and the children they might have—had 
the patina of legitimacy. But by examining the rule in 
context, where others who remained in the space would 
also be vulnerable to potential injury, the Court 
recognized that the health and safety rationale could not 
explain the sex-based exclusion. Id. at 198 (“Respondent 
does not seek to protect the unconceived children of all its 
employees. Despite evidence in the record about the

group.” Lonesome, 123 F. Supp. at 202 (D. Md. 1954); see also ibid. 
(expressing concern about “racial feeling” that would result from 
removing the physical-separation rules).



26

debilitating effect of lead exposure on the male 
reproductive system, Johnson Controls is concerned only 
with the harms that may befall the unborn offspring of its 
female employees.”)- The Court added, “[c]oncern for a 
woman’s existing or potential offspring historically has 
been the excuse for denying women equal employment 
opportunities.” Id. at 211.

The Court noted as well that “the absence of a 
malevolent motive does not convert a facially 
discriminatory policy into a neutral policy with a 
discriminatory effect.” Johnson Controls, 490 U.S. at 199. 
Instead, “[wjhether an employment practice involves 
disparate treatment through explicit facial discrimination 
does not depend on why the employer discriminates but 
rather on the explicit terms of the discrimination.” Ibid.

Additionally, a deeply divided Court grappled with a 
similar justification in Goesaert v. Cleary, 335 U.S. 464 
(1948), involving a Michigan law that forbade women, 
other than wives and daughters of the male bar owner, 
from working as licensed bartenders. According to the 
Court, “Michigan evidently believe[d] that the oversight 
assured through ownership by a barmaid’s husband or 
father minimizes hazards that may confront a barmaid 
without such protecting oversight.” Id. at 466. In 
particular, “bartending by women,” the Court wrote, 
“may, in the allowable legislative judgment, give rise to 
moral and social problems against which it may devise 
preventive measures.” Ibid.

While a majority at the time accepted that argument, 
the three dissenters were able to see through the state’s 
purported interest in protecting women. Because female 
owners could not work in their own bars even if a man was 
always present, the “inevitable result of the classification 
belies the assumption that the statute was motivated by a 
legislative solicitude for the moral and physical well-being



27

of women. * * *” Goesaert, 335 U.S. at 468 (Rutledge, J., 
dissenting). Roughly a quarter-century after Goesaert, the 
Seventh Circuit easily invalidated a Milwaukee ordinance 
that imposed a similar physical-separation rule, 
prohibiting female employees from sitting at the bar or 
with male customers at tables. See White v. Fleming, 522 
F.2d 730 (7th Cir. 1975).

In the instant case, although there is evidence of 
hostility toward G.G. in the physical-separation rule, even 
if there were not, the facial exclusion of students from 
bathrooms based on gender likewise amounts to an explicit 
and impermissible form of discrimination.

C. Residential Restrictions
While arising in somewhat different factual 

circumstances, the physical separation of homes and 
neighborhoods based on discomfort with a particular 
group of people also involves the same underlying 
principle and, therefore, presents troubling historical 
parallels. The state applied physical-separation rules at a 
broader level: instead of separating persons from a given 
room or facility, it separated them from an entire 
neighborhood or environment altogether.

For example, in City of Cleburne, Texas refused to 
authorize a group home for people with intellectual 
disabilities under its zoning regulations. The city 
permitted many types of group residences to be developed 
in the area, including boarding, lodging and fraternity and 
sorority houses as well as hospitals, sanitariums and 
nursing homes—but it made a special exception for similar 
homes for “the insane or feeble-minded or alcoholics or 
drug addicts.” 473 U.S. at 436 n.3 (emphasis omitted). For 
these groups, Cleburne required a special use permit, 
which had to be renewed annually and could only be



2 8

obtained with the signatures of nearby property owners 
and the approval of the local planning commission. Ibid.

When the Cleburne Living Center applied for the 
special use permit, the City Council refused the request. 
Like here, the City identified safety as a reason for its 
insistence on separating people with “mental retardation” 
from the general population. The Council said it “feared 
that the students [from a nearby school] might harass the 
occupants of the [] home” and noted concerns about the 
home’s location on an old flood plain. City of Cleburne, 473 
U.S. at 449. Moreover, the Council “expressed worry 
about fire hazards, the serenity of the neighborhood, and 
the avoidance of danger to other residents.” Id. at 450. It 
offered another neutral-sounding explanation as well—an 
interest in “avoiding concentration of population 
and * * * lessening congestion of the streets.”

The Court, however, concluded that the safety concerns 
did not hold up and that Cleburne was using safety as a 
legitimate-sounding but unavailing stand-in for “mere 
negative attitudes, or fear, unsubstantiated by factors 
which are properly cognizable in a zoning proceeding.” 
City of Cleburne, 473 U.S. at 448. See also id. at 449 
(describing the permit denial as “based on [] vague, 
undifferentiated fears”). Moreover, the Court examined 
the Council’s specific justifications, and, under rational 
basis review, could see that while these “wishes or 
objections of some fraction of the body politic” might be 
deeply felt, they did not provide a permissible basis for 
physical separating those with intellectual disabilities 
from others. Id. at 448.9

9 Much earlier in the 20th century, the Court considered another 
neighborhood-separation rule that expressly sought to “prevent 
conflict” and “to preserve the public peace and promote the general 
welfare.” Buchanan v. Warley, 245 U.S. 60,70 (1917) (discussing race-



29

In another prominent housing case involving physical- 
separation rules, the City of Akron amended its charter to 
allow private residents to discriminate based on race in 
home sales notwithstanding the city’s fair housing 
ordinance. Hunter v. Erickson, 390 U.S. 385 (1969). 
Although the discrimination in Hunter was private— 
individual homeowners ‘“had specified they did not wish 
their houses shown to negroes’”—the city acted, through 
its charter amendment, to protect that race-based barrier. 
Id. at 387. The City then invoked its constituents’ 
discomfort as a rationale for its action, stressing that the 
amendment should survive challenge because it involved 
“the delicate area of race relations.” Id. at 398. This Court, 
however, flatly rejected the position that concerns about 
delicate social relations, however strong they might have 
been in Ohio in the late 1960s, would be a sufficient reason 
to permit a rule authorizing physical separation based on 
race.

Finally, the now widely-discredited decision of 
Korematsu v. United States provides yet another 
illustration of neutral-sounding rationales offered to 
justify a physical-separation rule that rested on distrust of 
a subgroup of Americans. There, as is well known, the 
“twin dangers of espionage and sabotage” were invoked to

based zoning ordinance). Here, too, the Court recognized the 
legitimacy of general concerns with safety. Id. at 81 (describing the 
aims of preventing racial conflict and preserving public peace as 
“desirable” and “important”). However, the Court held that these 
arguments were insufficient to justify the discriminatory barrier 
imposed and rejected the government’s argument that property 
values would drop without the ordinance. Id. at 82. The Court also 
observed that the race-based barrier did not provide the protection it 
purported to offer: “property may be acquired by undesirable white 
neighbors or put to disagreeable though lawful uses with like results.” 
Ibid.



30

support a rule requiring Japanese-Americans to be forced 
out of their residences and into internment camps. 323 
U.S. 214, 217 (1944). Because those fears were baseless, 
Mr. Korematsu’s conviction was ultimately vacated, 
Congress awarded reparations, there was an official 
apology by the President, and an extraordinary confession 
of error by the United States. See, e.g., Neal Katyal, 
Confession Of Error: The Solicitor General’s Mistakes 
During The Japanese-American Internment Cases, May 
20, 2011, https://www.justice.gov/opa/blog/confession-erro 
r-solicitor-generals-mistakes-during-japanese-american 
-internment-cases/ (highlighting the government’s failure 
to “exhibit[] complete candor” and “reli[ance] on gross 
generalizations”).

CONCLUSION
This Court’s precedents make clear that the government 

may not physically separate and restrict individuals only 
because they are perceived to be different. That is 
particularly true when the underlying justification is built 
upon concerns about discomfort and fears of sexual 
predation that have no factual support. As the historical 
record shows, state officials have used such rationales to 
sow division and effectuate subordination rather than to 
provide meaningful protection. Such shaky arguments are 
bound to fail—as this Court has repeatedly recognized in 
the contexts of racially segregated bathrooms, the 
criminalization and exclusion of lesbian and gay 
individuals, and the varied restrictions on African 
Americans, Asian Americans, women, people with 
intellectual disabilities and others in public facilities, 
workplaces, and residential zoning.

Against the backdrop of these decisions, the separation 
of bathrooms by race is now rightly seen for what it is: 
immoral, insidious, and unambiguously impermissible.

https://www.justice.gov/opa/blog/confession-erro


31

Even while striving to overcome the enduring vestiges and 
latest iterations of prejudice, Brown, Loving, Obergefell 
and other illustrious precedents reaffirm that our nation 
has a vast capacity to progress: “[W]hat was once a 
‘natural’ and ‘self-evident’ ordering [of constitutional 
principles of equality] later comes to be seen as an artificial 
and invidious constraint on human potential and 
freedom.” City of Cleburne, 473 U.S. at 465 (Marshall, J., 
concurring). Indeed, not one of the crass, stereotypical 
predictions about the dangers of racially integrating 
restrooms—or swimming pools or neighborhoods or 
beyond—have come to fruition.

Likewise here, concerns about dangers to non­
transgender students from the presence of transgender 
students in the bathrooms are belied both by evidence that 
transgender students, including G.G., have been using 
bathrooms without harm to others and by the well- 
documented harms of discrimination and violence against 
transgender youth. See, e.g., U.S. Dep’t of Health & 
Human Services, LGBT Youth: Experiences With 
Violence, Nov. 12, 2014, https://www.cdc.gov/lgbthealth/ 
youth.htm/.

Neither the transgender context nor the prospect of 
momentary public apprehension should dissuade this 
Court from applying its precedents straightforwardly. 
Indeed, this Court has rejected the notion that rights are 
rigidly limited by prior contexts and past prejudices, 
finding that “[i]f rights were defined by who exercised 
them in the past, then received practices could serve as 
their own continued justification and new groups could not 
invoke rights once denied * * * Obergefell, 135 S. Ct. at 
2602 (citing Loving, 388 U.S. at 12; Lawrence, 539 U.S. at 
566-67).

To be sure, there was a time when there was widespread 
opposition to integration and to the Civil Rights Act, which

https://www.cdc.gov/lgbthealth/


a third of all Americans opposed as of 1964. Yet by 2014, a 
full 81% of Americans believed the passage of the Act was 
good for the country, with whites approving at 83%. See 
Roper Center for Public Opinion Research, Public 
Opinion on Civil Rights: Reflections on the Civil Rights 
Act of 196^, https://ropercenter.cornell.edu/public-opinion 
-on-civil-rights-reflections-on-the-civil-rights-act-of-1964/. 
Similarly, public opinion on interracial marriage has 
shifted dramatically in favor of greater inclusion, as the 
nation came to embrace the wisdom of Loving: in 1958, 
only 4% of Americans approved of interracial marriage 
(and therefore 96% disapproved)—-whereas by 2013, 96% 
of adults age 18-29 approved. See Gallup, In  U.S., 87% 
Approve of Black-White Marriage, vs. k% in 1958 (July 25, 
2013).

Today, our statutes and citizenry alike have a 
“continuing role in moving the Nation toward a more 
integrated society,” Inclusive Communities Project, 135 
S. Ct. at 2526. G.G.’s simple plea to be treated equally in 
the eyes of the law is an important step along that path.

For the foregoing reasons, this Court should affirm.

Respectfully submitted,

S h e r r il y n  I f il l  
Director-Counsel 

J an  a i N e lso n  
C h r is t in a  Sw a rn s  
M o n iq u e  L in -L u se  
D e u e l  Ross 
NAACP Legal Defense & 

Educational Fund, Inc. 
40 Rector St., FI. 5 
New York, NY 10006

S u za n n e  B. Go ld b er g  
Counsel of Record 

Columbia Law School Sexuality 
and Gender Law Clinic 

435 W. 116th St.
New York, NY 10027 
(212) 854-0411 
sgoldberg@columbia. edu

https://ropercenter.cornell.edu/public-opinion


33

C oty M ontag 
J ohn  P a u l  S c h n a p p e r - 

Ca stera s

NAACP Legal Defense & 
Educational Fund, Inc. 

1444 I Street NW 
Washington, DC 20005

March 2, 2017

P e t e r  K. St r is

E l iz a b e t h  B r a n n e n

D a n a B erk o w itz

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Stris & Maher LLP
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