STATE OF COLORADO
COLORADO CIVIL RIGHTS DIVISION
---------------------------------------------------------x
KATHRYN MATHIS AND JEREMY
:
MATHIS, ON BEHALF OF COY MATHIS, :
A MINOR,
:
:
Complainants,
:
:
v.
:
:
FOUNTAIN-FORT CARSON SCHOOL
:
DISTRICT #8,
:
:
Respondent.
:
:
---------------------------------------------------------x
Charge No.: P20130034X
REBUTTAL STATEMENT IN RESPONSE TO
FOUNTAIN-FORT CARSON SCHOOL DISTRICT’S POSITION STATEMENT
Kathryn Mathis and Jeremy Mathis, on behalf of Coy Mathis, a minor, submit the
following Rebuttal Statement in response to the Position Statement submitted by El Paso County
School District 8, commonly known and referred to as Fountain-Fort Carson School District #8
(the “District”). The above-captioned Charge concerns the District’s discriminatory refusal to
allow Coy to use the girls’ bathrooms at Eagleside Elementary School (the “School”) in violation
of the Colorado Anti-Discrimination Act (“CADA”).
INTRODUCTION
Six-year-old Coy has always known that she is a girl. Although she was labeled male at
birth, her family, friends, neighbors, and doctors now understand who she truly is: A
transgender girl. They support and love her.
Even Coy’s School understands who she is. Her earliest experiences at the School were
positive ones that allowed her to flourish. As the District itself describes it, the School
“permitted Coy to wear girls’ clothing and to be identified and referred to as a girl in the school
environment as soon as the child’s gender identity issue was brought to its attention.” (FountainFort Carson School District’s Position Statement in Response to Charge of Discrimination
(“Br.”) at 2.)
All the more remarkable and unreasonable then is the District’s position: Coy should be
the only girl at her school who cannot use the girls’ bathrooms. There can be no serious debate
about the ultimate outcome of the District’s proposal to segregate Coy from other girls at the
57083602.8
-1-
School. Ultimately, Coy will be singled out, stigmatized, harassed, and even bullied. At a
minimum, she will be made to feel different, “less than,” and badly about herself. A school
should not do this to its student.
This case does not require that the Civil Rights Division (“Division”) say anything new
about Colorado law. Despite the District’s protestations that it has been unable to understand
Colorado law, the law could not be more clear. Since 2009, educational institutions like the
District have been bound to follow this plain Rule:
All covered entities shall allow individuals the use of gendersegregated facilities that are consistent with their gender identity.
Gender-segregated facilities include, but are not limited to,
restrooms, locker rooms, dressing rooms, and dormitories.
3 Colo. Code Regs. 708-1:81.11(B). In pamphlets and public pronouncements, the Division has
restated this Rule. See, e.g., COLO. CIVIL RIGHTS DIV., SEXUAL ORIENTATION & TRANSGENDER
STATUS DISCRIMINATION: EMPLOYMENT, HOUSING & PUBLIC ACCOMMODATIONS 2 (Aug. 2010).
Resolving this case merely requires that the Division restate the law once more so that Coy can
return to School to reap the benefits of a Colorado public school education without fear of
discrimination.
Despite the Division’s clear directives on this issue, the District has submitted dozens of
pages of irrelevant material with its Position Statement in an effort to distract from the plain
language of Colorado law. We respond to the District’s contentions below and discuss the
various ways in which its actions violate Coy’s rights under Colorado law.
ARGUMENT
I.
THE CHARGE WAS TIMELY FILED
The District contends that the Charge was untimely filed sixty-one days after the
discrimination first occurred. (Br. at 4.) The District has miscalculated. The time between the
first act of discrimination, December 10, 2012, and the date the Charge was filed, February 7,
2013, is 59 days, not 61. The Charge was filed on time. 1 See COLO. REV. STAT. § 22-34-604. 2
1
The District also misstates irrelevant events occurring after December 10, 2012. The District misleadingly
contends that Coy’s parents “refused” to meet with School Principal Jason Crow. (Br. at 1.) Not so. Coy’s mother
met with Principal Crow on Wednesday, December 12, 2012. On that day, Principal Crow stated that the School
had obtained legal representation, its decision about Coy would not change, i.e., Coy would be prohibited from
using the girls’ bathrooms, and he would only discuss Coy’s use of other bathrooms. Coy’s parents then sought
legal representation.
2
Even under the District’s date of discrimination, December 10, 2012, the Charge was timely filed. But Coy was
permitted to continue using the girls’ bathrooms through December 14, 2012, and was not actually barred from
doing so until January 3, 2013. Moreover, each day that the District prevents Coy from using the girls’ bathrooms
represents a continuing violation of Coy’s rights for purposes of calculating the timeliness of the Charge.
57083602.8
-2-
II.
COY IS A GIRL
Coy Mathis is a girl and has always known herself to be one. Although she was labeled
male at birth, her family, friends, neighbors, and doctors now understand who she truly is: A
transgender girl. She has an innate female gender identity and has a girl’s gender expression.
She has socially transitioned to her life as a girl and has attended school as a girl in the District
since December 2011, when she publicly transitioned during her kindergarten year. 3 In all
respects, including clothing choices, use by students and staff of female pronouns, lining up with
the girls, and use of girls’ bathrooms, she has been treated like any other girl in the District.
Coy is also recognized as a girl in her daily life outside of school. She participates in Girl
Scouts, is recognized by adults and peers as a girl, and uses public bathrooms for girls. The
United States government recognizes Coy as a girl on her U.S. passport (attached hereto as
Exhibit A), and the State of Colorado recognizes Coy as a girl on State-issued ID (attached
hereto as Exhibit B).
Her doctors recognize Coy as a girl, too, and Coy has been diagnosed with Gender
Identity Disorder in Children. 4 To obtain a female Colorado ID, Coy had to submit a “Medical
Information Authorization” Form completed by a physician, which stated: “Based on the
patient’s gender identity and full time gender role expression, or on prior completion of medical
sex reassignment, my professional opinion is that the person’s gender is: female.” (Attached
hereto as Exhibit C.) Similarly, in order to obtain a female U.S. passport, Coy needed to submit
a letter from a medical doctor stating that she “has had appropriate clinical treatment for gender
transition to the new gender” of female. 5
The District itself agrees that Coy has a female gender identity. It states that it has never
refused to acknowledge Coy’s gender identity as a girl, that Coy has worn girls’ clothing at
School, and that Coy is “identified and referred to as a girl in the school environment.” (Br. at
2). 6
3
Contrary to the District’s assertion, Coy’s father never said to “let Coy pretend to be a girl.” (Br. at 5.)
4
For purposes of protection under CADA, Colorado law defines gender identity as “an innate sense of one’s own
gender.” 3 COLO. CODE REGS. § 708-1:81.2(C). No medical diagnosis is required to gain protection based on
transgender status. While medical documentation can be useful to document an individual’s innate sense of their
own gender in a case where that is in dispute, that is not the case here as both parties are in agreement that Coy’s
gender identity is female. (Br. at 2.) We reference Coy’s medical history merely to point out that it, too, is
consistent with her life as a girl. Accordingly, medical records will be provided, subject to suitable protections, only
if the Division believes it would aid the finder of fact.
5
7 U.S. DEP’T OF STATE FOREIGN AFFAIRS, Manual 1300 at App’x M, p. 10, available at
http://www.state.gov/documents/organization/143160.pdf
6
While the District implies that some hypothetical transgender girls may someday come to identify as boys (see Br.
at 16), there is no factual basis for this here. Coy has consistently expressed discomfort with her body and has
57083602.8
-3-
III.
THE DIVISION SHOULD NOT RENDER AN ADVISORY OPINION ABOUT
HYPOTHETICAL STUDENTS
Because the District has already agreed that Coy is a girl with a female gender identity, it
has no defense for its actions in violation of CADA. Instead, it introduces the prospect of other
hypothetical students who may enroll in the District in the future. (Br. at 3.) It appears to argue
that the resolution of this Charge requires the Division to adjudicate the rights of unknown
students that the District fears may “claim[] to have” “a gender identity issue.” (Id.)
The Division need not issue an advisory opinion that addresses the rights of hypothetical
students. In this case, all parties agree that Coy is a six-year-old girl with a girls’ gender identity.
The District’s suggestion that it should be allowed to violate Colorado law and discriminate
against Coy because hypothetical students may ask that their rights be respected in the future
must be rejected.
IV.
BARRING COY FROM THE GIRLS’ BATHROOMS VIOLATES CADA
A.
Prohibiting Coy from Using the Girls’ Bathrooms Is Transgender Status
Discrimination
Coy is protected from discrimination based on her transgender status. 7 Rule 81.11
provides that if a place of public accommodation 8 chooses to have facilities that are designated
for use by men or women, individuals must be allowed to use the facilities that match their
gender identity. 3 COLO. CODE REGS. § 708-1:81.11(B) (“All covered entities shall allow
individuals the use of gender-segregated facilities that are consistent with their gender identity.”).
Accordingly, the District must allow Coy to use the girls’ bathrooms because they are consistent
with her gender identity as a girl. Id. (defining “gender-segregated facilities” to include
“restrooms”).
Coy is harmed by the Schools’ violation of Colorado law. She wants what every other
girl has at school: access to the girls’ bathrooms because they match her gender identity. The
asserted that she is a girl. Children with these feelings retain a consistent gender identity into adolescence. See
Thomas D. Steensma et al., Desisting and Persisting Gender Dysphoria after Childhood: A Qualitative Follow-Up
Study, 16 CLINICAL CHILD PSYCHOL. & PSYCHIATRY 499, 504-05 (2011) (attached hereto as Exhibit D).
7
See COLO. REV. STAT. § 24-34-301(7) (defining “sexual orientation” to include “transgender status”); 3 Colo. Code
Regs. § 708-1:81.2(B) (defining “transgender” as “having a gender identity or gender expression that differs from
societal expectations based on gender assigned at birth”).
8
Both businesses and educational institutions are places of public accommodation pursuant to Colorado Revised
Statute § 24-34-601(1), and are therefore equally subject to the relevant provisions of Colorado law. Recognizing
this, many school districts – including Boulder Valley School District – have already implemented policies to
support transgender students. See, e.g., BOULDER VALLEY SCH. DIST., GUIDELINES REGARDING THE SUPPORT OF
STUDENTS WHO ARE TRANSGENDER AND GENDER NONCONFORMING (Feb. 22, 2012), available at
http://www.bouldercounty.org/doc/publichealth/bvsdtransguide.pdf (“Students shall have access to the restroom that
corresponds to their gender identity consistently asserted at school.”).
57083602.8
-4-
District has treated Coy differently from all other students. She is required to use bathrooms that
no other students are required to use – staff bathrooms, which are for adults, 9 the nurse’s
bathroom, which is not normally used by students unless they are sick, or the boys’ bathroom,
which no other girl is required, or even allowed, to use.
Being forced to use different bathrooms from everyone else is inherently stigmatizing. 10
Coy herself knows that she is being singled out and treated differently regardless of whether or
not other students observe such unusual bathroom use and, taking a cue from the District’s own
discriminatory treatment, harass Coy because of it. CADA prohibits not just bullying based on
transgender status but also systematic exclusion and differential treatment, i.e., it prohibits
discrimination. It is unlawful for an educational institution “directly or indirectly, to refuse,
withhold from, or deny to an individual or a group, because of . . . [transgender status] . . . , the
full and equal enjoyment of the goods, services, facilities, privileges, advantages, or
accommodations” of the educational institution. COLO. REV. STAT. § 24-34-601(2). By
restricting her bathroom access, the District is prohibiting Coy from the full and equal enjoyment
of the School on the same terms that other girls who are not transgender enjoy. 11
B.
Barring Coy from the Girls’ Bathrooms Is Sex Discrimination
CADA also protects Coy from discrimination based on her female sex. See COLO. REV.
STAT. § 24-34-601(2). “Sex” is not defined in the statute or regulations, but can be defined in
three major contexts: legal, social, and medical. Legal sex is the sex of someone as designated
by government-issued identity documents or in a judicial determination. Social sex is the sex of
9
The District states that it has changed the staff restrooms to be co-ed, i.e., to include both male and female pictures.
(Br. at 6.) Regardless of this cosmetic change, requiring a transgender student to use bathrooms not generally used
by other students is discrimination. Additionally, this change occurred after the District’s refusal to allow Coy to
use the girls’ bathrooms. This post hoc alteration does not affect whether the District’s December 10, 2012, decision
to disallow Coy the use of the girls’ bathrooms was discriminatory.
10
The District conflates being openly transgender with being singled out for differential treatment because one is
transgender. (Br. at 8.) The fact that the Mathis family has been open about Coy’s transgender status does not mean
that Coy has been “singled out” by her family. The District’s position implies that there is something inherently
shameful or stigmatizing about being transgender and that one should hide one’s transgender status to avoid
arousing the prejudices of others. As Andrew Solomon noted, “There is a tendency to see this as shameful and best
kept secret. . . . That is tremendously burdensome.” Margaret Sullivan, Anna Quindlen and Andrew Solomon Join
TIMES,
Mar.
25,
2013,
Discussion
About
Media
and
Transgender
Children,
N.Y.
http://publiceditor.blogs.nytimes.com/2013/03/25/anna-quindlen-and-andrew-solomon/?ref=thepubliceditor. It is
not being transgender that is stigmatizing, but rather discriminatory actions like the District’s. The media exposure
resulting from the District’s discrimination against Coy is irrelevant to the question of whether Coy’s rights under
Colorado law have been violated.
11
The District suggests that homeschooling Coy in an effort to shield her from the discriminatory treatment to which
she would be subjected by the School absolves it of responsibility to remedy its discriminatory actions. (Br. at 8-9.)
Coy’s parents’ decision to remove her from the School’s discriminatory environment has no bearing on whether
discrimination, in fact, occurred. Like every child in Colorado, Coy has the right to attend school without
discrimination.
57083602.8
-5-
an individual as perceived or asserted in everyday social interactions. Medical sex is someone’s
sex as determined by a medical professional.
Both the federal government and the state of Colorado identify Coy as a girl on
government-issued identity documents. See Section II, supra. Coy moves through the world as
a girl and is treated by society as a girl. See id. Her medical providers recognize her as a girl.12
See id.
Because Coy is recognized by the legal, social, and medical communities as a girl, the
District’s act of excluding Coy from girls’ bathrooms violates Colorado Revised Statute § 24-34601(2), which makes it unlawful for the District “directly or indirectly, to refuse, withhold from,
or deny to an individual or a group, because of . . . sex . . . , the full and equal enjoyment of the
goods, services, facilities, privileges, advantages, or accommodations” of the educational
institution.
C.
Other People’s Prejudices Cannot Be a Basis to Disregard CADA’s
Protections
The District contends that it can bar Coy from using the girls’ bathrooms for her own
protection because restricting access “make[s] it less likely that a transgender student will be
subject to the very ridicule or harassment from other students that the Parents fear.” (Br. at 10.)
Yet the District admits that no students harassed Coy for using the girls’ bathrooms (Br. at 7), 13
and if they had, those students would be subject to disciplinary action under the School’s
nondiscrimination and anti-bullying policies. Anti-discrimination laws are necessary precisely
because transgender individuals often experience ridicule, harassment, and other forms of
discrimination. Of course, such discrimination cannot be used as an excuse to undermine a law
designed to remedy that very discrimination.
12
Indeed, modern medical practice counsels that an individuals’ sex for purposes of accessing segregated facilities is
determined by gender identity. See WORLD PROF’L ASS’N FOR TRANSGENDER HEALTH, INC., CLARIFICATION ON
MEDICAL NECESSITY OF TREATMENT, SEX REASSIGNMENT, AND INSURANCE COVERAGE IN THE U.S.A. 3 (June 17,
2008), available at http://www.wpath.org/documents/Med%20Nec%20on%202008%20Letterhead.pdf; AM.
PSYCHOL. ASS’N, POLICY STATEMENT: TRANSGENDER, GENDER IDENTITY, & GENDER EXPRESSION NONDISCRIMINATION (Aug. 2008), available at http://www.apa.org/about/governance/council/policy/transgender.aspx;
NAT’L ASS’N OF SOCIAL WORKERS, SOCIAL WORK SPEAKS: NASW POLICY STATEMENTS 2009-2012, at 346-47 (8th
ed. 2009) (attached hereto as Exhibit E); AM. PSYCHIATRIC ASS’N, POSITION STATEMENT ON DISCRIMINATION
AGAINST
TRANSGENDER
AND
GENDER
VARIANT
INDIVIDUALS
(July
2012),
available
at
http://www.psychiatry.org/File%20Library/Advocacy%20and%20Newsroom/Position%20Statements/ps2012_Trans
genderDiscrimination.pdf.
13
The District incorrectly states that the decision to prohibit Coy from using the girls’ restroom only became “an
issue during Coy’s first-grade year, when first graders used either boys’ or girls’ restrooms.” (Br. at 3 n.5.) When
Coy was in kindergarten, the only single-user student restroom in the kindergarten rooms was the one in the
classroom. The kindergarten students, however, were frequently out of the classroom, e.g., in the cafeteria, in music
class, or in another class. All of these out-of-the-classroom areas had gender-segregated bathrooms, and Coy used
the girls’ bathrooms during these times without incident or complaint.
57083602.8
-6-
Additionally, the District argues that some students and parents may be made
uncomfortable if a transgender student is allowed to use the bathrooms at school. (Br. at 10.)
Other parents and students’ discomfort does not give the District the right to discriminate in
violation of CADA. Indeed, CADA was amended to address the very discrimination that
transgender people experience because of other people’s discomfort and prejudice. Courts have
consistently held that employers and places of public accommodation cannot discriminate based
upon the public’s expectations, customer preferences, or cultural prejudices. 14 The same rule
must apply to the District.
D.
The Case Law the District Relies Upon Is Inapposite
The District relies upon case law from Maine and Minnesota to support its interpretation
of Colorado law. (Br. at 11.) However, these Maine and Minnesota cases interpret Maine and
Minnesota laws that differ markedly from the Colorado law at issue in this case. These cases
have no precedential value in Colorado and shed no light on Colorado law, which they do not
address at all.
Specifically, Doe v. Clenchy, No. CV-09-201 (Me. Super. Ct. Nov. 20, 2012), cited by
the District in support of its discrimination against Coy (Br. at 10), addressed only the scope of
Maine law as it relates to protection for transgender students. Maine law does not include
Colorado law’s clear mandate regarding bathroom access: “All covered entities shall allow
individuals the use of gender-segregated facilities that are consistent with their gender identity.”
3 COLO. CODE REGS. § 708-1:81.11(B) (emphasis added). Because Maine law differs
dramatically from Colorado law with respect to the scope of protection offered to transgender
people, a Maine court’s interpretation of Maine law can have no bearing on the Division’s
interpretation of Colorado law. 15
Other bodies have reached differing conclusions. One example is a recent ruling by the
Iowa Civil Rights Commission, which the District failed to disclose in its Position Statement. In
that case, the Iowa Commission interpreted a statute that arguably offers less protection to
transgender people than does Colorado law. Jones v. Johnson County Sherriff’s Dep’t, CP No.
14
See, e.g., Diaz v. Pan Am. World Airways, Inc., 442 F.2d 385, 389 (5th Cir. 1971) (“While we recognize that the
public’s expectation of finding one sex in a particular role may cause some initial difficulty, it would be totally
anomalous if we were to allow the preferences and prejudices of the customers to determine whether the sex
discrimination was valid. Indeed, it was, to a large extent, these very prejudices the Act was meant to overcome.”);
Rucker v. Higher Educ. Aids Bd., 669 F.2d 1179, 1181 (7th Cir. 1982) (“[I]t is clearly forbidden by Title VII, to
refuse on racial grounds to hire someone because your customers or clientele do not like his race.”); Lam v. Univ. of
Hawai’i, 40 F.3d 1551, 1560 n.13 (9th Cir. 1994) (noting that alleged “Japanese cultural prejudices” against women
cannot justify refusing to hire a woman because “[t]he existence of . . . third party preferences for discrimination
does not . . . justify discriminatory hiring practices”); 29 C.F.R. § 1604.2(a)(1)(iii) (preventing recognition of a bona
fide occupational qualification under Title VII based on “[t]he refusal to hire an individual because of the
preferences of coworkers, the employer, clients or customers”).
15
The same is true with respect to the District’s reliance on Goins v. West Group, 635 N.W.2d 717, 723 (Minn.
2001), which involved a Minnesota court’s interpretation of a Minnesota law that offered markedly different
protections to transgender Minnesotans than Colorado law offers to transgender Coloradans.
57083602.8
-7-
12-11-61830 (Iowa Civil Rights Comm’n Mar. 5, 2013) (attached hereto as Exhibit F). Despite
this, the Iowa Civil Rights Commission found that denying a transgender woman access to the
women’s restroom violated Iowa law. 16
Finally, the District misleadingly cites the Transgender Law Center’s Peeing in Peace, a
Resource Guide for Transgender Activists and Allies (“Guide”) for the proposition that forcing
transgender individuals to use gender-neutral bathrooms is a non-discriminatory option. (Br. at
11.) The District selectively quoted the portion of the Guide that states that single-stall genderneutral bathrooms increase the safety of bathrooms for everyone. However, the District failed to
cite the Guide’s top recommendation, which is “that people be allowed to use the bathroom that
corresponds to their gender identity.” Guide at 13. The Guide continued, “[i]t’s important that
businesses or schools with a mix of single-stall and multi-stall bathrooms keep in mind that
transgender people should not be forced to only use the single-stall bathrooms.” Id. at 14. This
is the same position reflected in Colorado’s Rule 81.11, and nothing about the Guide or any case
law cited by the District supports its position in this case.
V.
THE SEXUAL ORIENTATION DISCRIMINATION RULES ARE A VALID
EXERCISE OF THE COMMISSION’S RULEMAKING AUTHORITY
A.
The Commission Acted Within Its Authority and Properly Promulgated the
Sexual Orientation Discrimination Rules
The District incorrectly argues that the Civil Rights Commission’s Rules regarding
sexual orientation discrimination are void. (Br. at 12.) The Civil Rights Commission
promulgated the Sexual Orientation Discrimination Rules pursuant to Colorado Revised Statute
16
The Iowa Civil Rights Commission had issued guidance to the public stating that Iowa law requires “that
individuals are permitted to access . . . restrooms in accordance with their gender identity, rather than their assigned
sex at birth. IOWA CIVIL RIGHTS COMM’N, SEXUAL ORIENTATION & GENDER IDENTITY: A PUBLIC
ACCOMMODATIONS
PROVIDER’S
GUIDE
TO
IOWA
LAW,
available
at
https://icrc.iowa.gov/sites/files/civil_rights/publications/2012/ SOGIPublicAccom.pdf.
The Division’s brochures have similarly explained Colorado law. See COLO. CIVIL RIGHTS DIV., SEXUAL
ORIENTATION & TRANSGENDER STATUS: A GUIDE TO THE PUBLIC ACCOMMODATIONS PROVISIONS OF THE
COLORADO ANTI-DISCRIMINATION ACT; COLO. CIVIL RIGHTS DIV., supra page 2.
Other civil rights agencies have issued similar guidance stating that refusing transgender individuals use of the
restroom that matches their gender identity is discrimination under public accommodations anti-discrimination law.
Such jurisdictions include Nevada, New York, San Francisco, Washington, and Washington, DC. NEVADA EQUAL
RIGHTS
COMM’N,
FACTS
ABOUT
GENDER
IDENTITY
OR
EXPRESSION
DISCRIMINATION,
http://detr.state.nv.us/nerc_pages/NERC_docs/ Facts_About_Gender_Identity_or_Expression_Discrimination.pdf;
NEW YORK CITY COMM’N ON HUMAN RIGHTS, GUIDELINES REGARDING GENDER IDENTITY DISCRIMINATION 7,
http://www.nyc.gov/html/cchr/pdf/GenderDis_ English.pdf; SAN FRANCISCO HUMAN RIGHTS COMM’N,
COMPLIANCE RULES AND REGULATIONS REGARDING GENDER IDENTITY DISCRIMINATION (Dec. 10, 2003),
STATE
HUMAN
RIGHTS
COMM’N,
SEXUAL
http://www.sf-hrc.org/index.aspx?page=29;
WASH.
ORIENTATION/GENDER IDENTITY QUESTIONS, http://www hum.wa.gov/faq/FAQSexualOrientation3 html; D.C.
OFFICE OF HUMAN RIGHTS & COMM’N ON HUMAN RIGHTS, COMPLIANCE RULES AND REGULATIONS REGARDING
GENDER IDENTITY OR EXPRESSION § 4-802.1.
57083602.8
-8-
§ 24-34-305(1)(a) for the purpose of “contribut[ing] to the elimination of discrimination on the
basis of sexual orientation, inclusive of transgender status, in . . . public accommodations.” 3
COLO. CODE REGS. § 708-1:81. The Rules, including Rules 81.2 (defining gender identity) and
81.11 (clarifying that bathroom access is based on gender identity), were properly submitted to
the Attorney General, who certified that he found “no apparent constitutional or legal deficiency
in their form or substance.” Op. of the Att’y Gen. Rendered in Connection with the Rules
Adopted by the Civil Rights Comm’n on 09/25/2009.
A court reviewing an agency’s rules must engage in a two-part test to determine whether
those rules are valid. Wine & Spirits Wholesalers v. Colo. Dep’t of Revenue, Liquor
Enforcement Div., 919 P.2d 894, 897 (Colo. Ct. App. 1996) (adopting the analysis of Chevron,
U.S.A., Inc. v. Nat. Res. Defense Council, Inc., 467 U.S. 837 (1984)). The court first must
determine whether the legislature has “directly spoken to the precise question at issue.” Id. Here
the legislature did not address which restrooms transgender individuals should use. Nor did it
attempt to reconcile the provision allowing sex-specific facilities (COLO. REV. STAT. § 24-34601(3)) with the provision that transgender individuals in Colorado must not be subject to
discrimination (COLO. REV. STAT. § 24-34-601(2)).
Accordingly, where “the statute is silent or ambiguous with respect to the specific issue,
the inquiry becomes whether the agency’s interpretation is based on a permissible construction
of the statute.” Mile High Greyhound Park, Inc. v. Colo. Racing Comm’n, 12 P.3d 351, 354
(Colo. Ct. App. 2000). When reviewing the regulation, a court cannot simply substitute its view
for that of a reasonable interpretation made by the administrative agency. Id. at 353-54 (“When
the statute is implicitly silent as to the issue to be determined, ‘a court may not substitute its own
construction of a statutory provision for a reasonable interpretation made by the administrator of
an agency.’”); Id. at 353 (“An agency’s construction of its own governing statute is entitled to
great weight.” (citation omitted)).
Here the Commission’s promulgation of Rule 81.11 is valid. While the District may not
like the Commission’s Rule, that does not make it unreasonable or otherwise invalid.
B.
The District Has Not Met Its Burden to Show that the Sexual Orientation
Discrimination Rules Are Invalid
The District professes confusion over the Commission’s use of the phrase “gendersegregated facilities” as opposed to “sex-segregated facilities” and argues that Rule 81.11 is
invalid on that basis. (Br. at 12-13.) The District is incorrect. The terms “sex” and “gender,”
while they may have different meanings in some social and academic contexts, are generally
used interchangeably by courts, legislatures, and administrative agencies. 17 Indeed, the District
itself uses the terms synonymously. 18
17
Price Waterhouse v. Hopkins, 490 U.S. 228, 239-41 (1989) (using “sex” and “gender” interchangeably); Glenn v.
Brumby, 663 F.3d 1312, 1315 (11th Cir. 2011) (noting that in the Equal Protection context, the Supreme Court uses
the words “sex” and “gender” “interchangeably”); Schwenk v. Hartford, 204 F.3d 1187, 1202 (9th Cir. 2000) (noting
that Gender Motivated Violence Act and Title VII “prohibit discrimination based on gender as well as sex. Indeed,
57083602.8
-9-
The District further argues that Rule 81.11 is void for vagueness and unenforceable. (Br.
at 15-16.) It is again incorrect. There can be no confusion as to what “gender-segregated”
facilities are since Rule 81.11 explicitly defines “gender-segregated” facilities to include
“restrooms, locker rooms, dressing rooms, and dormitories.” 3 COLO. CODE REGS. § 7081:81.11(B). Even if the District did not know that “gender-segregated” means “sex-segregated,”
i.e., facilities designated for boys or girls, it was on notice that the Rule applied to “restrooms.”
Given that the School’s bathrooms are generally designated male or female, the District should
have been aware that this Rule, plain in meaning on its face, applied to its bathrooms.
In the end, the Commission adopted 3 COLO. CODE REGS. § 70-1:81.1-81:11 pursuant to
its enabling statute, COLO. REV. STAT. § 24-34-305(1)(a), which grants the Commission broad
rulemaking powers. The Commission’s Rules are presumed valid and the District bears the
burden of establishing the Rule’s invalidity. Regular Route Common Carrier Conference of
Colo. Motor Carriers Ass’n v. Pub. Utilities Comm’n of State of Colo., 761 P.2d 737, 743 (Colo.
1988) (“Rules adopted pursuant to a statutory rulemaking proceeding are presumed valid and the
burden is upon the challenging party to establish their invalidity by demonstrating that the
rulemaking body acted in an unconstitutional manner, exceeded its statutory authority, or
otherwise acted in a manner contrary to statutory requirements.”). The District has failed to meet
its burden to show that the Rule is invalid in any way. 19
for purposes of these two acts, the terms ‘sex’ and ‘gender’ have become interchangeable.”); Rene v. MGM Grand
Hotel, Inc., 243 F.3d 1206, 1209 (9th Cir. 2001) (“the term ‘sex’ refers to gender. In the context of Title VII these
terms are used interchangeably. See Harris, 510 U.S. [17,] 22.”); Durham Life Ins. Co. v. Evans, 166 F.3d 139 (3d
Cir. Pa. 1999) (noting that the terms “sex” and “gender” are used interchangeably in employment discrimination
cases and are not considered to be distinct concepts for Title VII purposes); Hopkins v. Baltimore Gas & Elec. Co.,
77 F.3d 745, 749 (4th Cir. Md. 1996) (“Because Congress intended that the term ‘sex’ in Title VII mean simply
‘man’ or ‘woman,’ there is no need to distinguish between the terms ‘sex’ and ‘gender’ in Title VII cases.
Consequently, courts, speaking in the context of Title VII, have used the term ‘sex’ and ‘gender’ interchangeably to
refer simply to the fact that an employee is male or female. . . . Some academic writers, however, seek to maintain
or to heighten a distinction between the terms ‘sex’ and ‘gender,’ asserting that ‘gender’ connotes cultural or
attitudinal characteristics distinctive to the sexes, as opposed to their physical characteristics. While it may be useful
to disaggregate the definition of ‘gender’ from ‘sex’ for some purposes, in this opinion we make no such effort,
using the terms interchangeably to refer to whether an employee is a man or a woman.” (citations omitted)); In re
Heilig, 372 Md. 692, 699 (Md. 2003) (“[W]ithout implying anything of substance, we shall use the terms
interchangeably.”); Julie A. Greenberg, Defining Male and Female: Intersexuality and the Collision Between Law
and Biology, 41 ARIZ. L. REV. 265, 274 (1999) (“Sex and gender are frequently used interchangeably. Most
legislation utilizes the word ‘sex,’ yet courts, legislators, and administrative agencies often substitute the word
‘gender’ for ‘sex’ when they interpret these statutes. Despite the different meanings of the terms ‘sex’ and ‘gender,’
they are often used interchangeably.”).
18
The District notes that it “designates student restrooms by sex, with the exception of the gender-neutral
kindergarten restroom and a gender-neutral restroom located in the School’s health room.” (Br. 6 n.9.)
19
Finally, the District contends that the phrase “reasonable accommodations” under 3 COLO. CODE REGS. § 7081:81.11(C) is undefined, and it does not understand what it is required to do pursuant to that provision. (Br. at 1415.) The District’s argument is a distraction and is incorrect. The “reasonable accommodations” provision of Rule
81.11(C) does not apply in this case, which deals only with bathrooms. The provision applies only to places where
one must undress in front of others. 3 COLO. CODE REGS. § 81.11(C) (entities must make “reasonable
accommodations” to allow an individual access to gender-segregated facilities, consistent with that individual’s
57083602.8
- 10 -