Refusing to Allow a Transgender Student to Use the Gender-Segregated Restroom that is Consistent with Their Gender Identity is Unlawful Discrimination

On June 17, 2013, the Colorado Civil Rights Division (“CCRD”) issued a Determination in the Charge of Discrimination filed by Coy Mathis (Ms. Mathis), by and through her parents, Jeremy and Kathryn Mathis, against Fountain-Fort Carson School District 8 (“School”).   CCRD found that the School had engaged in unlawful discrimination when they refused to allow Ms. Mathis, a transgender student, use of the girls’ restroom, which was consistent with her sex and gender identity.  This is a finding that is likely to impact not only schools, but also other public accommodation facilities.

On February 7, 2013, the parents of Coy Mathis, a Colorado first-grader, (normally we would not identify a minor by name; however, this individual has been identified by her parents in numerous media forums as well as in the ruling that is attached), filed a complaint with the CCRD.  The complaint alleged that Ms. Mathis’ school had “denied her equal terms and conditions of service of goods, services, benefits, or privileges; equal treatment based upon harassment; and the full and equal enjoyment of goods, services, facilities, privileges advantages or accommodations of a place of public accommodation due to her sex (female) and sexual orientation (transgender).” (see Determination, attached below).  The allegations were that Ms. Mathis was allowed to use the girls’ restroom during her kindergarten year and then again during the first part of her first-grade year; however, in December of 2012, Ms. Mathis’ parents were notified that Ms. Mathis would no longer be allowed to use the girls’ restroom and would instead need to use either the boys’ restroom or one of two single-user restrooms – the adult staff restroom or the health office restroom.  Ms. Mathis’ parents attempted to resolve the issue with the school, but the school refused to reconsider their decision.  As a result, the Mathis family filed their complaint with the CCRD, and that filing led to the June 17th determination.

The Colorado Anti-Discrimination Act (“CADA”) provides that discrimination in the areas of employment, housing, and public accommodations because of an individual’s or group’s protected class/characteristic is unlawful.  Sexual Orientation, whether actual or perceived, is a protected class/characteristic under Colorado law.  Furthermore, sexual orientation is defined as heterosexuality, homosexuality (lesbian or gay), bisexuality, and transgender status (transgender status means a gender identity or gender expression that differ from societal expectations based upon gender assigned at birth).  CADA also grants the Colorado Civil Rights Commission with authority to adopt regulations to interpret, implement, and aid in the enforcement of CADA.  As part of those efforts, the Commission has previously addressed restroom usage for transgender people by adopting Rule 81.11, which provides, in part:

  • (A) Nothing in the Act prohibits segregation of facilities on the basis of gender.
  • (B) All covered entities shall allow individuals the use of gender-segregated facilities that are consistent with their gender identity.  Gender-segregated facilities include, but are not limited to, restrooms, locker rooms, dressing roos, and dormitories.

In applying the provisions of CADA, as well as the regulations adopted by the Colorado Civil Rights Commission, the CCRD found that the actions of the School were discriminatory.  The CCRD noted that Ms. Mathis’ birth certificate identified her as “male,” but found that the “Division must weigh the totality of the evidence and rely on the most current legal documents to determine the Charging Party’s sex and gender.”  As such, the CCRD found that the weight of the evidence supported finding Ms. Mathis’ sex as female.  The CCRD then found that by not permitting Ms. Mathis to use the restroom with which she identified, the School was treating her less favorably than other students seeking the same service.  That finding established a case of discriminatory terms and conditions of services prohibited by the CADA.  The CCRD also found that a case of discriminatory harassment was established, noting that by telling Ms. Mathis “she must disregard her identity while performing one of the most essential human functions constitutes severe and pervasive treatment, and creates an environment that is objectively and subjectively hostile, intimidating or offensive.”  Finally, the CCRD also found that a case of discriminatory denial of services had been established.  For this claim the School’s argument was that they had provided an alternate restroom to Ms. Mathis by providing the use of one of two single-use restrooms.  The CCRD rejected that argument citing the “separate but equal” philosophy and noting that, “at least in terms of protected classes, [] separate is very rarely, if ever, equal.”  The CCRD found that offering alternate restrooms such as the School did in this case, does not constitute “services” sufficient to meet Ms. Mathis’ needs.

Now that the CCRD has reached a determination, the matter is referred to the CCRD’s mandatory conciliation program to see if an amicable resolution can be reached.  If there is an agreed resolution it is possible that the agreement will not be released to the public.  If no agreement is reached, the matter may head to the courts for a resolution. Either way, the CCRD’s Determination letter is likely to be extremely helpful in other cases of alleged discrimination based upon sexual orientation by public accommodations.

You can review the complete Determination letter here.