Scrutinizing the Bathroom Binary: Equal Protection Theories for Nonbinary Students

Authors

Annie Schuver, University of Michigan Law School

Abstract

Over the past decade, transgender students have challenged discriminatory school bathroom policies under the Equal Protection Clause with varying success. But another group of students, facing similar discrimination, has yet to see its day in court. Like their transgender peers, nonbinary students often lack access to gender-appropriate restrooms at school. Many K–12 schools offer only “boys” and “girls” restrooms, ignoring the needs of students who identify as neither boys nor girls, as both of those genders, or as something else entirely. Forced to use sex-segregated bathrooms (or no bathroom at all), nonbinary students suffer adverse health, safety, and educational outcomes. To illustrate pathways to relief, this Note provides an inventory of equal protection claims nonbinary students can make to challenge discriminatory bathroom policies. Each theory—alleging unconstitutional discrimination on the basis of sex, transgender status, or nonbinary status—is promising and limited in its own respect. Independently or together, these theories can support a viable equal protection challenge that triggers heightened scrutiny.

Recommended Citation

Annie Schuver, Scrutinizing the Bathroom Binary: Equal Protection Theories for Nonbinary Students, 122 Mich. L. Rev. 1519 (2024).
Available at: https://repository.law.umich.edu/mlr/vol122/iss7/4