Whose Bathroom Is It, Anyway?: The Legal Status of Transgender Bathroom Access Under Federal Employment Law – Note by Allison Bader

From Volume 91, Number 4 (May 2018)
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Whose Bathroom is it, anyway?: The Legal Status of Transgender Bathroom Access Under Federal Employment Law

Allison Bader[*]

TABLE OF CONTENTS

INTRODUCTION

I. Background

A. Defining Transgender

B. History of Transgender Status & Rights in the United States

C. Transgender Bathroom Access in the United States

D. Transgender Bathroom Access in the Workplace

II. Federal Anti-Discrimination Laws and Transgender Rights

A. Title VII of the Civil Rights Act of 1964

B. Comparison to Transgender Status Protections under Other Federal Laws

III. Executive Branch Incoherence on Transgender Protections

A. Trump Administration Changes Direction

B. Federal Agencies in Conflict

IV. Federal Courts’ Approaches to Gender Identity Discrimination and Transgender Bathroom
Access

A. Circuit Split in Title VII Interpretation

B. Cases Interpreting Title VII to Protect Transgender
Status

C. Federal Cases Interpreting Title VII to Not Encompass Gender Identity Discrimination

D. Federal Cases Addressing Bathroom Access

V. Arguments for Competing Interpretations of Title VII as Pertaining to Transgender Bathroom
Access

A. Supporters of The DOJ’s Position on Transgender Bathroom Access

B. Supporters of the EEOC’s Position on Transgender Bathroom Access

VI. Analysis

A. Interpretation of “Sex” in Title VII

B. Equal Bathroom Access and Discrimination

C. Policy Implications of Bathroom Access

Conclusion

 

INTRODUCTION

In many ways, Michael C. Hughes is an average American family man. He is a middle-aged father of four from Rochester, Minnesota. He has been married to his wife for twelve years. He has a broad, muscular frame and is partial to cowboy hats and wide belt buckles. But Hughes is unlike the average American family man in one fundamental way: he was born biologically female.[1] Hughes is one of the more than 1.4 million transgender adults in the United States,[2] a small but increasingly visible group of people who are currently facing a unique legal battle to use restrooms and single-sex facilities that align with their gender identity.[3]

Hughes garnered publicity with a viral photo taken in a public restroom, in protest of “bathroom bills”—laws that require Hughes to use women’s restrooms and facilities, despite his gender identity.[4] “Bathroom bill” is the common name for legislation that prohibits individuals from using bathrooms (or other private, single-sex facilities like locker rooms) that do not match their biological sex or sex markers on their identification documents, depending on the bill.[5] Posing in front of the bathroom mirror in a women’s restroom, as female patrons look on questioningly, Hughes “presents” as a malemaking him appear out of place in the restroom that nonetheless matches his biological sex. Hughes’ photo and its accompanying hashtag, “#WeJustNeedtoPee,” went viral in 2016, reflecting Americans’ rapt attention on transgender issues.[6]

Hughes’ photo was a direct reaction to North Carolina’s Public Facilities Privacy & Security Act, or House Bill 2 (“H.B. 2”), which to date remains the only bathroom bill to successfully pass a state legislature.[7] H.B. 2 was enacted shortly after the passage of Ordinance 7056 in Charlotte, North Carolina, which prohibited discrimination on the basis of gender identity in Charlotte’s public accommodations and, in doing so, permitted transgender people to use the restrooms of their choosing.[8] H.B. 2 prohibited individuals from using bathrooms and changing facilities in government buildingsincluding schools, government agencies, and courthousesthat did not correspond with the sex listed on their birth certificates.[9] The bill also overturned Charlotte Ordinance 7056 and prohibited municipalities from enacting their own anti-discrimination policies.[10] Many transgender rights activists argued that H.B. 2 was the most anti-LGBT piece of legislation then operating in the United States.[11] It launched a series of lawsuits, as proponents and opponents of the bill prepared to battle over the application and extent of transgender rights.[12] It also faced severe pushback and resulted in harm to North Carolina’s economy and public image.[13] On March 30, 2017, a year after H.B. 2’s passage, both the state House and Senate partially overturned the bill, doing away with the prohibition on transgender bathroom access.[14] 

Although there are currently no state laws prohibiting transgender individuals from using the bathroom of their choice, transgender bathroom access remains an important issue for two reasons. First, numerous bathroom bills are currently pending: in the 2017 legislative session alone, sixteen states[15] considered legislation that would restrict transgender access to bathrooms, locker rooms, and other sex-segregated facilities that match their assigned sex at birth or “biological sex.”[16] Second, private employers may adopt policies or practices preventing their transgender employees from accessing bathrooms and other single-sex facilities corresponding to their gender identity. This Note will focus on this second issue, dealing specifically with the legality of private employers policies restricting transgender bathroom access.

While transgender people have become more prominent in mainstream America over the last ten years, their status under the law is still an open question in many areas. This includes whether transgender employees are legally entitled to access bathrooms and single-sex facilities matching their gender identity in the workplace. The answer to this question is far from clear: in the absence of explicit federal protections against transgender discrimination, advocates and supporters look to Title VII of the Civil Rights Act of 1964 (“Title VII”), the main source of federal employment anti-discrimination law. Title VII prohibits discrimination on the basis of “sex” in employment and thus potentially provides protection for transgender persons against discrimination in the workplace.[17]

Multiple federal agencies, including the Equal Employment Opportunity Commission (“EEOC”), an independent federal agency that oversees enforcement of Title VII, have issued guidances that affirm these federal laws protect transgender employees from discrimination.[18] The Obama administration also embraced this view.[19] And multiple federal courts have found federal laws prohibiting sex discrimination also cover discrimination on the basis of transgender status, including the Courts of Appeals for the First, Sixth, Ninth, and Eleventh Circuits and lower courts in the second and fifth circuits. However, some argue that these agencies, the Obama administration, and the courts overstepped their sphere of authority and argue that Title VII was never intended to (and thus should not) offer protection for transgender status.[20] This includes Attorney General Jeff Sessions, who has helped steer the Trump-era Department of Justice in the direction of rolling back administrative policies that offered transgender employees protections in the workplace.[21]

This question is hotly debated, and both sides of the aisle have made public policy arguments in support of their interpretation of the law. Proponents of these policies cite privacy concerns, employee comfort, and the protection of women and children as the motivation for these policies.[22] On the other hand, opponents argue these concerns are at best a myth and at worst a thinly veiled pretext for denying transgender people equal rights.[23] Moreover, they claim that not allowing transgender employees to access bathrooms corresponding to their gender identity poses serious privacy and safety concerns for those employees.[24]

This Note will critically analyze arguments on both sides. Ultimately, this Note argues that Title VII should be read to protect transgender status and gender identity from discrimination on the basis of sex. Thus, employer policies that prevent transgender employees from using bathrooms matching their gender identity violate the provisions of Title VII that protect individuals from discrimination on the basis of sex. When this issue eventually goes to the Supreme Court, the Court should affirm that transgender people are protected from discrimination and disparate treatment in their employment under federal law and that denying them access to bathrooms matching their gender identity in the workplace is a form of discrimination.

This Note will proceed in six parts. Part I defines terms and describes the history of transgender status and bathroom access under the law. Part II provides background information on Title VII and discusses how other federal laws protecting against discrimination on the basis of sex, like Title IX, have been interpreted with regard to transgender status and bathroom access. Part III discusses the disjointed stance taken by the executive branch, including the postures of the Trump administration and administrative agencies. Part IV outlines various federal courts’ approaches to transgender rights under Title VII, including bathroom access. Part V introduces the various arguments for and against reading Title VII as prohibiting discrimination on the basis of transgender status. Finally, Part VI argues that federal law protects transgender people from discrimination on the basis of their gender identity in employment and prohibits private employer policies that restrict transgender bathroom access.

I.  Background

A.  Defining Transgender

Before diving into the substance of the debate over transgender discrimination’s legal protections, it is helpful to define the terms that will be used throughout this Note and provide brief information on transgender individuals. Transgender people (or “transpersons”) identify with a gender that does not correspond to their biological sex as assigned at birth.[25] Most commonly, transgender people identify with the opposite sex from what they were assigned at birth.[26] For example, a person who was born biologically male but identifies as a female is referred to as a transwoman, and a person who was born biologically female but identifies as a male is called a transman. However, the term transgender may also apply to people who do not exclusively identify as either male or female—for example, genderfluid, genderqueer, and agender people, and those who identify with a third gender outside of the male-female binary.[27] The term transgender does not conventionally apply to cross-dressers—individuals who derive pleasure or satisfaction from dressing as the opposite sex—unless those individuals have gender identities that do not match their sex at birth.[28] Finally, it is a common misconception that being transgender relates in some way to sexual orientation. However, transgender status is completely separate from sexual orientation, and transgender individuals can be straight, gay, lesbian, bisexual, and so on.[29]

 A “gender transition” is the process by which transgender people begin “presenting” as their gender identity (that is, taking steps to outwardly appear as the sex matching their gender identity and identifying themselves as such). This process is sometimes coupled with undergoing medical treatments or procedures to change their biological sex.[30] These medical treatments may include the following: hormone replacement treatment; breast reduction or augmentation; and sexual reassignment surgery, which involves reconstructing the genitals to match those of the biological sex that corresponds with the individual’s gender identity.[31] Not all transgender people undergo procedures or medical treatment in their transitions, and the desire or intent to have medical procedures is not a requirement for being transgender. When a transgender person physically appears as the sex corresponding with their gender identity to the public at large, this is called “passing.”[32]

Transgender status is no longer considered a mental health disorder by the American Diagnostic and Statistical Manual of Mental Disorders (“DSM”), though it once was.[33] However, the DSM and many mental health professionals recognize “gender dysphoria”—the discomfort and distress associated with one’s assigned gender role—as a mental health disorder in need of treatment.[34] Indeed, treatment plans can include “counseling, cross-sex hormones, puberty suppression and gender reassignment surgery.[35]

It is important to note that the word “transsexual,” which was previously used to describe transpeople, is disfavored by the transgender community[36] and will not be used in this Note.

B.  History of Transgender Status & Rights in the United States

Transgender status and the concept of gender identity is not a recent phenomenon. Individuals from many cultures over time have identified with genders that do not match their biological sex.[37] For example, many Native American tribes recognized a third gender, which embraced biological males who identified with a gender separate from male and female.[38] These individuals were sometimes referred to as “two-spirit” people.[39] According to some scholars, at least 155 Native American tribes historically accepted these two-spirit people who existed outside of the gender binary.[40] In addition, during the American Civil War, many biological women disguised their sex to fight as soldiers; although most who survived presumably lived as women after the war, some lived out the rest of their lives as men.[41] The most famous example, Albert Cashier, “served in the army as a man, lived his life as [a] man and was buried at 71 with full military honors in 1915, as a man,” despite being biologically female.[42] Almost a century after the Civil War, in 1951, Christine Jorgensen became famous for undergoing the first sex reassignment surgery that was widely publicized in the United States, bringing an early transition to light.[43]

But while people have long identified as transgender, at least in effect if not in name, there is no question that transgender people and the legal questions surrounding their rights have become much more visible in the last decade. Transgender celebrities like Chaz Bono (formerly Chastity Bono), the son of musicians Cher and Sonny Bono, and Matrix directors Lana and Lilly Wachowski (formerly Larry and Andrew Wachowski) brought media attention to transgender people by publicly coming out in 2009, 2010, and 2016, respectively.[44] In 2014, Laverne Cox, a transgender woman and star of the Netflix hit show Orange is the New Black, became the first openly transgender person to be nominated for an Emmy in an acting category for her portrayal of the transgender inmate Sophia Burset.[45] In the same year, Ms. Cox was on the cover of Time, stirring up conversations about transgender people and gender identity at dinner tables across the country.[46]

Finally came a tipping point for transgender visibility: Olympic gold medal-winning decathlete Caitlyn Jenner (formerly Bruce Jenner) publicly came out as a transwoman in April 2015.[47] Ms. Jenner’s coming out was, in many ways, the perfect vehicle for bringing transgender issues to light. To older generations, the 67-year-old was an American hero and phenom who brought home gold in the 1974 Olympics.[48] To younger generations, Jenner was the stepfather of Kim Kardashian and member of the Kardashian clan, one of America’s most famous families. As arguably the most famous openly transgender person in the world, Ms. Jenner’s public coming-out and televised transition firmly solidified transgender people as prominent players in media and entertainment.

Most recently, in a historic moment for transgender representation in government, Virginia House of Delegates candidate Danica Roem became the first openly transgender woman to win a seat in a state legislature in November 2017.[49] Roem’s win was particularly notable because she unseated incumbent Republican candidate Robert G. Marshall, the author of Virginia’s ultimately unsuccessful bathroom bill.

Yet despite these changes, the legal status of transgender people and the rights they are afforded vary widely across the country and depend on the laws enacted within each state. Though the 14th Amendment includes a general guarantee of equal protection,[50] transgender people are not explicitly a protected class under federal law.[51] Congress has repeatedly tried, and failed, to pass the Employment Non-Discrimination Act (“ENDA”), a law that would include explicit protections against both sexual orientation and gender identity discrimination in the workplace.[52] Given the current makeup of the Republican-controlled Congress, it seems unlikely the ENDA or a similar law will pass anytime soon.[53] Thus, there are no over-arching federal laws offering employees protection from discrimination on the basis of transgender status. As of January 2017, twenty-one states and at least 225 local jurisdictions had adopted legislation specifically prohibiting discrimination based on gender identity or transgender status.[54] These protections variably include prohibitions on discrimination in housing, employment, and public accommodations.[55]

Nevertheless, many questions remain for transgender people in the remaining states, who face potential discrimination from employers, schools, and the state itself without recourse. This is especially true since the Supreme Court has not addressed whether existing federal laws, like Title VII, apply to transgender status or prevent discrimination on the basis of gender identity.[56] Throughout history, transgender people have faced, and continue to face, discrimination in a variety of areas including: employment, housing, public accommodations, education, health, marriage, parenting, and adoption.[57] Transgender people are also predisposed to higher levels of depression and suicide, face substantially higher homelessness rates, and are more often victims of violent crimes than their non-transgender peers.[58] Unfortunately, transgender people do not fare any better in the workplace; 47% of those surveyed by the National Transgender Discrimination Survey reported experiencing adverse job outcomes as a result of their transgender status and 90% reported experiencing harassment, mistreatment, or discrimination on the job.[59]

C.  Transgender Bathroom Access in the United States

The laws surrounding transgender peoples’ access to restrooms and other single-sex facilities matching their gender identity is equally muddy. In some states, using a restroom that does not match an individual’s biological sex or “official” state-recognized sex found on identification documents is not a criminal act.[60] Other states have gone further and passed non-discrimination laws that specifically give individuals the right to use single-sex restrooms and other gendered public accommodations that conform with their gender identity.[61] In these states, there are no legal repercussions for transgender people who use restrooms or facilities that do not match their biological sex or identification markers.

In other states, using a public restroom that does not correspond with an individual’s biological or state-recognized sex is quasi-illegal.[62] This means that if an individual is told to leave a restroom by a security guard or police officer and refuses, they may be cited or arrested for disturbing the peace.

At the other end of the spectrum, some states have passed or considered bathroom bills that specifically require individuals to use restrooms and other single-sex facilities that match the sex listed on their birth certificates.[63] In these jurisdictions, transgender people must use facilities corresponding to the sex that is listed on their IDs, use gender neutral or “family” restrooms, or use restrooms specifically designated for transgender people.[64] While North Carolina remains the only state to pass a bathroom bill, Florida, Arizona, Texas, and Kentucky are among states that have considered such laws.[65]

Finally, some jurisdictions have taken a different approach to resolve this problem, addressing the facilities themselves. For example, California passed a law in September 2016 that required all single-occupancy restrooms to be gender-neutral.[66] Although this law is limited to single-occupancy restrooms and does not apply to many restrooms in the state, it is one of the more progressive approaches taken by a state. Vermont passed a similar law on May 11, 2018.[67] As of May 2018, no other states had passed similar legislation.

D.  Transgender Bathroom Access in the Workplace

Additional legal questions are implicated when examining transgender bathroom access in the employment sphere. Without the passage of an amendment to Title VII or clarification from the Supreme Court, it is unclear whether the prohibition on “sex” discrimination in the workplace applies to discrimination on the basis of transgender status or gender identity. If it does apply to such discrimination, bathroom bills restricting transgender access to gender identity-affirming facilities would violate federal law. Moreover, this could make private employers liable for discrimination under Title VII if they refuse to allow their transgender employees to access facilities matching their gender identities.

However, even if transgender status was covered by the word “sex” in Title VII, it is unclear whether prohibiting employees from using restrooms or other single-sex facilities that do not correspond with their biological sex is discriminatory. The argument has been made that employers enforcing such rules would not be discriminating on the basis of sex because they would be allowing all employees to have equal access to the restroom or single-sex facility that matches that individual’s biological sex.[68] Of course, opponents of bathroom bills and other restrictions on transgender bathroom access argue that such actions are discriminatory because they allow cisgender employees to access bathrooms matching their gender identities, but not transgender employees, resulting in disparate treatment.[69]             

There is an additional wrinkle: the Occupational Safety and Health Administration (“OSHA”), an agency of the United States Department of Labor, views bathroom access as a basic condition of employment and “requires employers to provide their employees with toilet facilities.”[70] For this reason, OSHA prohibits employers from putting “unreasonable restrictions” on employees’ restroom access.[71] To the extent that requiring a transgender employee to use the bathroom that corresponds with their biological sex may be interpreted to “unreasonably restrict” that individual’s access to employer restrooms, employers may be legally required to offer transgender employees an alternative.[72] This may feasibly include access to either a private or gender-neutral bathroom or to a bathroom matching that individual’s gender identity.

II.  Federal Anti-Discrimination Laws and Transgender Rights

A.  Title VII of the Civil Rights Act of 1964

Title VII of the Civil Rights Act of 1964 is the fundamental federal employment discrimination law in the United States. Title VII states that an employer covered under the act may not discriminate against employees on the basis of their race, color, religion, sex, or national origin.[73] Specifically, Title VII prohibits discrimination on the basis of these protected categories in the terms, conditions, and privileges of employment. Thus, employees do not have a claim for disparate treatment under Title VII, unless their employer took an adverse employment action against them because of their race, color, religion, sex, or national origin. Although Title VII breaks up employers into two categories, federal employers and private sector employers, and addresses them separately, the laws are analogous in their prohibition of discrimination on the basis of the defined protected characteristics.[74] The Equal Employment Opportunity Commission (“EEOC”) is tasked with interpreting and enforcing Title VII.

What is covered under “sex” discrimination has long been a subject for debate and has been interpreted to cover an expanding set of actions over time.[75] When the Civil Rights Act of 1964 was originally proposed, it did not include sex as one of the characteristics it would protect from employment discrimination.[76] At the time, the concept of prohibiting employers from discriminating against female employees (who were deemed to be covered by this protection) was so radical that it almost prevented the Civil Rights Act from being passed.[77] In fact, some argue that staunch civil rights opponent, Representative Howard W. Smith (Virginia), proposed that the bill include sex “to prevent discrimination against another minority group, the women,” in an effort to kill the bill.[78] Nonetheless, the Civil Rights Act, with Title VII, was passed.[79] In its early days, the EEOC largely ignored sex as a discrimination category under Title VII and viewed it as a “fluke” that was not intended by the passage of the bill.[80] As protection against sex discrimination has grown to be a critical element of Title VII, however, the slapdash birth of sex as a protected category has made questions of what Congress intended to protect somewhat unclear.

Because Title VII does not define “sex” or make explicit reference to protection for transgender status, it is unclear if discrimination against transgender employees is protected under the law. One of the earliest legal challenges to whether transgender status was a protected characteristic came in 1984, in Ulane v. Eastern Airlines, Inc.[81] In Ulane, a pilot who was born biologically male underwent sex reassignment surgery and began publicly identifying as a woman. She was terminated because of her transition, as the airline argued she would distract her flight crew and prevent them from working in a manner conducive to safety. Ulane subsequently filed a claim with the EEOC for sex discrimination in violation of Title VII. At the trial court level, District Court Judge Grady held for Ulane, finding that Eastern Airlines had discriminated against Ulane on the basis of her transgender status, which was covered as a form of sex discrimination under Title VII.[82] Judge Grady also found that Ulane was discriminated against for being a woman, which was also prohibited by Title VII.[83] In his opinion, Judge Grady relied on scientific information to examine how “sex” could mean more than male or female, including other nuances of sexual identity, such as gender identity.[84] He also rejected the argument that Title VII was not intended to apply to transgender status because “Congress never intended anything one way or the other on the question of whether the term, ‘sex,’ would include transsexuals.”[85] This, in his view, justified a broad understanding of “sex” that included psychological and social understandings.[86] However, Judge Grady’s ruling was reversed on appeal when the Seventh Circuit refused to apply Title VII sex discrimination to Ulane’s case, holding explicitly that: (1) Title VII does not prohibit discrimination against transgender status and (2) Ulane was not a woman under the law.[87]

Although the Supreme Court has never explicitly found that Title VII prohibits transgender discrimination, the Court has held that sex discrimination includes discrimination against gender expression in the form of gender stereotyping.[88] In Price Waterhouse v. Hopkins, the Court used a broad definition of “sex” when it extended Title VII sex discrimination to prohibit the actions of an employer who discriminated against its female employee for dressing and acting overly “masculine.”[89] In that case, Ann Hopkins sued her former employer, the accounting firm Price Waterhouse, after she was denied partnership. Hopkins argued that she faced this adverse employment action because she didn’t match the other partners’ ideas of how a woman should act, speak, and dress.[90] Indeed, representatives of the firm instructed her to “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry.”[91] The Supreme Court held that the firm discriminated against Hopkins on the basis of her sex when it didn’t offer her partnership because she did not conform to stereotypical ideals of femininity.

Importantly, post-Price Waterhouse, it is unclear whether a sex-stereotyping claim would be successful if an employer could show it took an adverse action against a transgender woman employee, not because she did not dress as a stereotypical man, but because she was transgender. Out of this confusion, some believe Price Waterhouse represents a victory for transgender people, while others believe the holding of the case does not go far enough to protect transgender people from discrimination on the basis of their gender identity as it requires the logical leap that discrimination against transgender individuals is inherently a form of gender stereotyping.[92]

B.  Comparison to Transgender Status Protections under Other Federal Laws

Title VII’s anti-discrimination language is most analogous to Title IX of the Education Amendments of 1972, which similarly prohibits discrimination on the basis of “sex,” though in schools as opposed to the workplace.[93] The laws not only share similar language, but also similar controversy regarding the breadth of their anti-discrimination coverage. Indeed, a debate currently rages regarding whether transgender students’ bathroom access is protected under Title IX’s sex discrimination prohibition. This question “has roiled the nation, pitting LGBT activists and transgender youth and their parents against those who say privacy and safety are compromised by accommodating transgender youth in school restrooms and locker rooms.”[94]

Taking a side in this debate, numerous state courts have ruled that transgender students have the right to use bathrooms and facilities that match their gender identity. For example, in Doe v. Regional School Unit 26, the Maine Supreme Court ruled that a school discriminated against a female transgender student by denying her access to the women’s restroom because it had effectively treated her differently from other students on the basis of her transgender status.[95] The Colorado Division of Civil Rights came to a similar conclusion in Mathis v. Fountain-Fort Carson School District 8, in which the court ruled that “[b]y not permitting [a student] to use the restroom with which she identifies, as non-transgender students are permitted to do, the [school] treated the [student] less favorably than other students seeking the same service.”[96]

Federal courts have also grappled with whether Title IX gives transgender students the right to access restrooms and locker rooms that correspond with their gender identity. In 2015, the Fourth Circuit became the first federal Court of Appeals to determine whether Title IX’s prohibition on sex discrimination applies to transgender status in G.G. ex rel. Grimm v. Gloucester County School Board.[97] In G.G., a transgender high school student named Gavin Grimm challenged his school board’s policy that prohibited him from using the boys’ restroom on campus. When Grimm refused to use the girls’ restroom, he was told he could use a unisex restroom that he believed singled him out and humiliated him. Grimm’s case was dismissed at the district court level, but on appeal, the Court of Appeals decided in Grimm’s favor with a tie vote.[98] The school board appealed the decision, and in October of 2016, the Supreme Court granted certiorari, agreeing for the first time to take up the question of Title IX’s application to transgender status and discrimination.[99]

But the Supreme Court withdrew cert in March of 2017, after the Trump administration rescinded guidance from the Obama Administration’s Department of Justice that had advised schools that denying transgender students access to the bathroom of their choice violated Title IX.[100] Because the Fourth Circuit had initially deferred to this guidance in deciding for Grimm, this change in policy sharply changed the question before the Court.[101] In light of this, the Court vacated the Fourth Circuit’s decision and sent it back for reconsideration, where it remains as of May 2018. Had the Supreme Court decided this case, it may have shed some light on the proper interpretation of sex discrimination in Title VII. Unfortunately, without the Supreme Court’s final word, the Title IX question remains muddy.

III.  Executive Branch Incoherence on Transgender Protections

A.  Trump Administration Changes Direction

Since taking office in January 2017, President Trump’s administration has clearly departed from the pro-LGBT statements he made during his candidacy. This has caused uncertainty over the administration’s future stance on transgender issues. On the campaign trail, Trump made multiple statements that seemed to evince his commitment to LGBT causes. At a 2016 campaign rally, following the tragic mass shooting at the Pulse nightclub in Orlando, Florida, Trump said “[a]s your president, I will do everything in my power to protect our LGBTQ citizens . . . .”[102] At a different event, he held a large pride flag onstage with the words “LGBTs for Trump” written on it.[103]

In April 2017, amidst controversy over North Carolina’s bathroom bill, H.B. 2, then-candidate Trump said in an interview that transgender North Carolinians should be allowed to “use the bathroom they feel is appropriate.”[104] He later doubled down, agreeing that Caitlyn Jenner would be welcome to use any bathroom at Trump Tower if she were to visit.[105] This was in clear contrast to the other Republican presidential candidate front-runner, Ted Cruz, who voiced support for H.B. 2 and bathroom bills in general.[106]

Yet the first year of Trump’s presidency was marked by anti-LGBT policies and stances. As discussed above, in February 2017, the Trump administration rescinded an Obama-era Department of Education guidance that instructed schools to allow transgender students to use bathrooms and locker rooms that match their gender identities.[107] Though some praised the administration for leaving the issue to the states,[108] others argued this move showed “the president’s promise to protect LGBT rights was just empty rhetoric.”[109] Then in July 2017, Trump announced he would reinstate a ban on transgender individuals serving in the military, tweeting that the “military must be focused on decisive and overwhelming . . . victory and cannot be burdened with the tremendous medical costs and disruption that transgender [sic] in the military would entail.”[110] Most recently, in October 2017, Trump’s Justice Department reversed an Obama-era memo that interpreted Title VII to protect transgender employees from discrimination on the basis of their gender identity.[111] In a memo announcing this decision, Attorney General Jeff Sessions argued “Title VII’s prohibition on sex discrimination encompasses discrimination between men and women but does not encompass discrimination based on gender identity per se, including transgender status.”[112] This was not surprising considering Trump’s Justice Department had previously filed an amicus brief in the Second Circuit Court of Appeals, arguing that Title VII should not be interpreted to prohibit discrimination on the basis of sexual orientation.[113]

Curiously, the Trump administration has continued to support one Obama-era protection against transgender discrimination—Executive Order 13672, which forbids federal government contractors from discrimination against employees on the basis of sexual orientation or gender identity.[114] In a briefing issued in January of 2017, the White House affirmed that the president intended to continue enforcing this executive order, stating “President Trump continues to be respectful and supportive of LGBTQ rights, just as he was throughout the election.”[115]

Considering these discrepancies, it is unclear what side the Trump administration will take on transgender rights and issues as they emerge, including the issue of transgender bathroom access. However, the decision to walk back from the Obama administration’s interpretation of Title VII strikes a blow to transgender employees who can no longer rely on the guidance as legal support for their right to use gender-affirming bathrooms at work.

B.  Federal Agencies in Conflict

While the position of the Trump administration seems disjointed, the broader stance of the executive branch and the federal agencies within it is a true quagmire. As discussed above, the Department of Justice has interpreted sex discrimination as not encompassing discrimination on the basis of transgender status.[116] In doing so, it has implicitly rejected arguments from transgender employees that being denied access to gender-affirming facilities is unlawful discrimination. But, a separate group of federal agencies has weighed in on the issue in favor of broader transgender rights.[117] These agencies include the EEOC, OSHA, and the Department of Labor’s Office of Federal Contract Compliance Programs (“OFCCP”).[118]

The EEOC is the federal agency tasked with enforcing anti-discrimination law in employment;[119] as such, its position on Title VII is persuasive. Though Title VII does not explicitly mention transgender status or gender identity as a basis for discrimination, the EEOC takes the position that such discrimination is covered by the prohibition on sex discrimination.[120] This, the EEOC argues, is because discriminating against employees for being transgender and thus not conforming to the stereotypical behaviors of their biological sex is a form of gender stereotyping, which the Supreme Court held is unlawful sex discrimination.[121] Applying this position, the EEOC has issued numerous opinions in recent years that protect transgender employees from discrimination on the basis of gender identity or transgender status.[122] For example, the EEOC has found the following can constitute a claim for sex discrimination: 1) failing to hire an employee because she is a transgender woman;[123] 2) firing an employee because he is transitioning or plans to transition;[124] and 3) an employer’s intentional misuse of a transgender employee’s preferred name and pronouns.[125] Numerous federal courts have cited the most prominent of these cases, Macy v. Holder.[126] Macy, decided in 2012, was a landmark decision for the EEOC, wherein the agency held that a transgender plaintiff could pursue a Title VII claim against an employer for sex discrimination.[127]

The EEOC has also addressed the issue of bathroom access. In a Fact Sheet titled “Bathroom/Facility Access and Transgender Employees,” the agency advises that denying employees equal access to bathrooms and other facilities that correspond to their gender identity is a form of sex discrimination in violation of Title VII.[128] The Fact Sheet cites to the 2015 EEOC case Lusardi v. McHugh, in which the EEOC ruled as follows:

1. a federal agency that denied an employee equal access to a common bathroom/facility corresponding to the employee’s gender identity discriminated on the basis of sex;

2. the agency could not condition this right on the employee undergoing or providing proof of surgery or any other medical procedure; and

3. the agency could not avoid the requirement to provide equal access to a common bathroom/facility by restricting a transgender employee to a single-user restroom instead (though the employer can make a single-user restroom available to all employees who might choose to use it).[129]

In Lusardi, a transgender woman named Tamara Lusardi brought a claim against her employer, a department of the U.S. Army, for disparate treatment.[130] Lusardi had been instructed to use a single-user restroom called the “executive restroom” instead of the common women’s restroom on the premises, until such a time as she had undergone “surgery,” the extent of which was unspecified.[131] Lusardi used the common women’s restroom on three occasions, when the executive restroom was unavailable; each time, her superior confronted her and told her she must use the executive restroom until she could provide “proof” that she had undergone surgery.[132] The EEOC held that Lusardi was discriminated against because of her transgender status, which was a violation of Title VII.[133] Thus, if the EEOC’s interpretation of Title VII is to be followed, employer restrictions on transgender employees’ access to facilities matching their gender identity constitute unlawful discrimination in violation of federal law.

Although EEOC decisions are not binding on the courts, the agency’s position is persuasive, so courts often give the EEOC some level of deference on issues of employment law.[134] Therefore, courts may adopt the EEOC in their rulings in cases of gender identity discrimination.[135]

Similarly, OSHA has taken the position that employees should be permitted to use the bathroom that corresponds to their gender identities in the workplace.[136] Under OSHA’s Sanitation standard (1910.141), employers are required to provide bathroom facilities to employees to prevent the “adverse health effects that can result if toilets are not available when employees need them.”[137] These health effects can include urinary tract infections, bladder problems, and bowel problems. To this end, OSHA identifies as a “Core Principle” that “[a]ll employees, including transgender employees, should have access to restrooms that correspond to their gender identity.”[138] OSHA also advises that transgender employees should not be required to use a “segregated facility,” though they may elect to use one provided for them.[139] Although not interpreting Title VII, OSHA’s position exemplifies the public policy reasons for prohibiting employer policies that restrict access to gender-affirming bathrooms—namely, the health and safety of transgender employees.

Finally, the Department of Labor (“DOL”) has adopted prohibitions on employer policies that restrict access to gender-affirming bathrooms.[140] Per the DOL’s OFCCP, government contractors subject to Executive Order 11246 must allow transgender employees to use bathrooms and other facilities that correspond to their gender identities.[141] Like the OSHA regulations, this prohibition does not interpret Title VII; however, it reflects policy considerations in favor of protecting transgender employees from discrimination.

In sum, there are two clear sides to the executive branch when it comes to interpretations of Title VII. Though the Trump Department of Justice recently rejected its predecessor’s expansive reading of the law as it applies to transgender employees, there is growing momentum toward the EEOC’s position. Time will tell if the Trump administration influences the other agencies to its adopt its position, if the opposite will occur, or if the executive branch schism will simply remain.

IV.  Federal Courts’ Approaches to Gender Identity Discrimination and Transgender Bathroom Access

A.  Circuit Split in Title VII Interpretation

In the absence of clear federal law prohibiting discrimination on the basis of transgender status, federal courts have grappled with whether Title VII’s prohibition on sex discrimination covers these actions. U.S. appellate courts are currently split on this issue.[142] Two Circuit Courts of Appeals—the Seventh and Tenth Circuits—have issued decisions holding that sex discrimination under Title VII does not include discrimination on the basis of gender identity or transgender status.[143] Four Circuit Courts of Appeals—the First, Sixth, Ninth, and Eleventh Circuits—have held that Title VII sex discrimination does include discrimination on the basis of gender identity.[144] Finally, the remaining five Circuit Courts of Appeals—the Second, Third, Fourth, Fifth, and Eights Circuits—have not addressed this issue, though lower district courts in these circuits have.[145]

B.  Cases Interpreting Title VII to Protect Transgender Status

Representing one side of the Circuit Split, the First, Sixth, Ninth, and Eleventh Circuits have held that discrimination on the basis transgender status or gender identity is a form of sex discrimination under Title VII.[146] In general, these cases find that discrimination on the basis of transgender status is a form of sex stereotyping discrimination because discriminating employers are mistreating transgender employees for not conforming to established gender norms.[147]

Examples of this line of reasoning can be found in Sixth Circuit precedents. Following Price Waterhouse, two Sixth Circuit cases, Smith v. City of Salem and Barnes v. City of Cincinnati, used the gender stereotyping doctrine to hold that sex discrimination under Title VII includes discrimination based on gender identity.[148] In Smith, the Sixth Circuit applied Price Waterhouse’s prohibition of sex stereotyping discrimination to a transgender plaintiff for the first time.[149] There, a transgender fire department lieutenant who began expressing himself in a more traditionally feminine way was fired for not conforming to sex stereotypes. The court argued there was no reason why a transgender plaintiff could not be protected from discrimination on the basis of sex stereotyping by Title VII, holding “discrimination against a plaintiff who is a transsexual—and therefore fails to act and/or identify with his or her gender—is no different from the discrimination directed against Ann Hopkins in Price Waterhouse, who, in sex-stereotypical terms, did not act like a woman.”[150]  

Similarly, in Barnes, a transgender police officer argued he was demoted for his gender non-conformity, as he presented and lived as a woman while off-duty.[151] Relying on Smith, the court found that (1) Title VII protected Barnes as someone who did not conform to sex stereotypes and (2) he had been demoted for this non-conformity, in violation of federal law.[152]

The Eleventh Circuit also embraced this reasoning in Glenn v. Brumby. In Glenn, a transgender woman brought a claim for unlawful discrimination on the basis of sex in violation of the Equal Protection Clause after she was terminated from her employment with the Georgia General Assembly.[153] Although the claim was brought under 42 U.S.C. § 1983, the court analyzed Title VII precedent, including Price Waterhouse.[154] In doing so, the court concluded that the defendant discriminated against the employee on the basis of her sex by firing her due to her gender transition and concerns that other women would object to her use of the women’s bathroom.[155] The court found there is “congruence” between transgender-based discrimination and sex-stereotyping discrimination because an individual is regarded as transgender “precisely because of the perception that his or her behavior transgresses gender stereotypes.”[156] And because all employees are protected from discrimination based on sex stereotypes, the court held these protections must be available to transgender employees.[157]

It is important to note other courts have approached this question from a textualist perspective, finding that discrimination on the basis of gender identity is sex discrimination precisely because it is related to the “sex” of the targeted employees. The strongest example of this is the EEOC case Macy v. Holder, in which the Commission held that anti-transgender discrimination is per se sex discrimination and does not require evidence of gender stereotyping, which is “simply one means of proving sex discrimination.”[158] Under this line of reasoning, transgender employees can establish they were discriminated against because of sex if, for example, they have evidence that their employer has animus against transgender individuals or is uncomfortable with the employee’s transition.[159] A similar approach was articulated in a District Court for the District of Columbia case, Schroer v. Billington, with an opinion by Judge Robertson, who argued that it ultimately does not “matter[] for purposes of Title VII liability whether the [defendant] withdrew its offer of employment because it perceived [the employee] to be an insufficiently masculine man, an insufficiently feminine woman, or an inherently gender-nonconforming transsexual.”[160] Judge Robertson reasoned that since the employer refused to hire the plaintiff because she planned to change her anatomical sex through sex reassignment surgery as part of her transition to female, the adverse employment action was quite literally “because of sex.”[161] The opinion also analogized to discrimination against religious converts, which is clearly encompassed by religious discrimination, arguing that similar discrimination against those who seek to change their sex must constitute sex discrimination.[162]

C.  Federal Cases Interpreting Title VII to Not Encompass Gender Identity Discrimination

On the other side of the Circuit Split, the Seventh and Tenth Circuit Courts of Appeals have explicitly held that Title VII does not protect transgender employees from discrimination on the basis of their gender identity. Both circuits primarily argue that Congress never intended Title VII to protect transgender status, so broadening Title VII to cover gender identity would be an impermissible overreach of the court’s adjudicatory role.[163]

In the Tenth Circuit, Etsitty v. Utah Transit Authority established the prevailing approach to gender identity discrimination claims under Title VII. In Etsitty, a bus driver was fired from the Utah Transit Authority shortly after she revealed that she was transgender to her employers.[164] Far from denying that she was fired due to being transgender, her employer’s proffered reason for terminating her was that she intended to use women’s public restrooms while wearing her employee uniform, despite still having male genitalia.[165] The court held that “discrimination against a transsexual based on the person’s status as a transsexual is not discrimination because of sex under Title VII,” as “sex” must be taken to mean the “traditional binary conception of sex.”[166] Notably, the court acknowledged that the plain language of the statute, not the legislative intent, should guide its interpretation of Title VII; indeed, it expressed willingness to change its interpretation should “scientific research . . . someday cause a shift in the plain meaning of the term ‘sex’ so that it extends beyond the two starkly defined categories of male and female.”[167]

In the Seventh Circuit, Ulane remains the applicable interpretation of Title VII’s sex discrimination provision. However, the precedential value of Ulane has been questioned for two reasons: First, Ulane predates Price Waterhouse, which not only fundamentally changed the meaning of sex discrimination in Title VII, but also provided a new potential protection to employees discriminated against because of their transgender status.[168] Second, a Seventh Circuit case, Hively v. Ivy Tech Community College of Indiana, called into question the logic of Ulane as it relates to the proper interpretation of sex discrimination and, some have argued, may actually overrule Ulane.[169] In Hively, the court held that discrimination on the basis of sexual orientation is cognizable as sex discrimination under Title VII because the plaintiff, a lesbian woman, would not have been discriminated against for marrying a woman if she were a man, thus, the discrimination occurred “because she is a woman.”[170] The court also stated it was time to “overrule [its] previous cases that have endeavored to find and observe [the] line” between sexual orientation discrimination and sex discrimination.[171] This language could theoretically include Ulane, but the court clearly limited its decision to “the issue put before [it]”—namely sexual orientation—leaving “[a]dditional complications . . . for another day.”[172] Thus, it seems the famous Ulane precedent remains alive and well in the Seventh Circuit. Nevertheless, the Seventh Circuit’s reasoning in Hively should encourage transgender rights activists as it seems to fly directly in the face of Ulane and may generate pro-transgender case law in the near future.

D.  Federal Cases Addressing Bathroom Access

In addition to the overarching Title VII case law on transgender discrimination, some federal courts have explicitly addressed transgender bathroom access. Perhaps the best known of these cases is Roberts v. Clark County School District, in which a Nevada district court explicitly adopted the holdings of the EEOC cases, Macy and Lusardi.[173] In Roberts, the plaintiff informed his employer that he was transgender and would be transitioning from female to male; shortly after, he began using the men’s restroom at his workplace.[174] In response, the school district instructed him to only use the gender neutral restrooms “to avoid any future complaints” and officially banned him from using the men’s or women’s restrooms until he could present documentation of a sex change.[175]

The Nevada District Court granted the plaintiff summary judgment on his sex discrimination claim, finding that the school district “banned Roberts from the women’s bathroom because he no longer behaved like a woman, [which] . . . alone shows that the school district discriminated against Roberts based on his gender and sex stereotypes.”[176] The court also addressed the school district’s claim that even if discrimination on the basis of Robert’s transgender status was prohibited by Title VII, it did not discriminate against him by prohibiting his use of the men’s room because he was biologically female and other similarly-situated females were also prohibited from using the men’s room.[177] The court summarily dismissed this argument because Roberts, unlike other biological females, was not allowed to use the women’s restroom and so was treated differently.[178]

Similarly, in Mickens v. General Electric Co., the Western District of Kentucky denied an employer’s motion to dismiss a transgender employee’s Title VII sex discrimination claim based on allegations that the employee was denied access to a gender-affirming bathroom and was terminated for attendance issues stemming from that denial.[179] In Mickens, the employee alleged that his employer, General Electric (“GE”), instructed him to not use the men’s restroom at the workplace and that he was required to use a restroom further away from his workstation, causing him to return late from breaks, which he was reprimanded for.[180] The court rejected the employer’s argument that discrimination on the basis of transgender status is not actionable under Title VII, citing Price Waterhouse and the prohibition against discrimination due to sex stereotyping.[181] On this basis, it found that the plaintiff met his burden of pleading a sex discrimination claim as he had alleged “continued discrimination and harassment against him . . . because he did not conform to the gender stereotype of what someone who was born female should look and act like.”[182]

The issue has also been addressed from the other side, where a non-transgender employee alleged she had been discriminated against on the basis of sex and religion because her employer permitted a transgender coworker to use the women’s restroom.[183] In Cruzan v. Special School District No. 1, a female teacher filed a suit against her school district for discrimination after the school permitted a transgender employee, Davis, to use the women’s bathroom and she encountered Davis in said bathroom.[184] The court rejected Cruzan’s argument that requiring her to share the women’s restroom with someone who was biologically male constituted sexual harassment.[185] It further held that in order establish a case of discrimination on these grounds, a plaintiff must show that the school enacted a policy directed at the plaintiff and that the plaintiff suffered adverse employment action as a result.[186] Because the school’s policy was not directed at the plaintiff and the plaintiff had “convenient access to numerous restrooms,” including single-stall bathrooms, summary judgment for the defendant was appropriate.[187]

Taken together, this recent case law demonstrates momentum toward broader interpretations of Title VII that protects employees from both discrimination on the basis of transgender status broadly and specific policies preventing transgender employees from using gender-affirming bathrooms and facilities.

V.  Arguments for Competing Interpretations of Title VII as Pertaining to Transgender Bathroom Access

A war currently rages between those who believe Title VII protects transgender employees from restrictive bathroom policies and those who disagree. Both the circuit split that has developed in the courts and the divide in the executive branch exemplify this divide.[188] This Part will canvass the major legal arguments made by both sides of this debate. These arguments run the gambit from the proper interpretation of Title VII, to what constitutes discrimination in the workplace, to policy arguments regarding employee health, comfort, and safety. For clarity, this Note will refer to those who believe Title VII does not provide protection against transgender bathroom restrictions as supporters of the DOJ’s position. It will refer to those who believe Title VII does offer this protection to transgender employees as supporters of the EEOC’s position.

A.  Supporters of The DOJ’s Position on Transgender Bathroom Access

First, the Trump DOJ and supporters of its position argue that Title VII’s prohibition on sex discrimination does not include transgender status; thus, it is inappropriate to read Title VII as offering protection against transgender status discrimination in the terms, conditions, and privileges of employment.[189] This, they argue, is because a plain language reading of the word “sex” does not include notions of gender identity, but refers only to the two traditionally recognized sexes—male and female.[190] Thus, gender identity is a completely separate concept from sex. This side also argues that Title VII’s legislative history shows that when the law was passed, Congress intended to protect women from discrimination in employment and did not intend (let alone envision) the law to apply to transgender status.[191] Proponents of this argument may point to federal laws that explicitly protect both “sex” and “gender identity” discrimination, like the Violence Against Women Act, to argue that if Congress had intended to protect gender identity discrimination, it would have explicitly provided for that protection.[192]

The Seventh Circuit made these arguments in Ulane to hold that Title VII does not protect against employment discrimination on the basis of transgender status. First, majority opinion author Judge Wood argued that although “some may define ‘sex . . . to mean an individual’s ‘sexual identity,’ [the court’s] responsibility is to . . . determine what Congress intended when it decided to outlaw discrimination based on sex.”[193] Finding no evidence Congress intended to protect “sexual identity” discrimination, Judge Wood dismissed that broader interpretation.[194] Second, Judge Wood referenced a “maxim of statutory construction that, unless otherwise defined, words should be given their ordinary, common meaning;” in his view, the ordinary, common meaning of sex discrimination is discriminating against women because they are women and vice versa—nothing more.[195]

Notably, this argument faced pushback from opponents who argue cases like Price Waterhouse broadened the meaning of sex discrimination since Ulane.[196] In response, supporters of the DOJ position argue that Price Waterhouse and subsequent Sixth Circuit cases, Smith and Barnes, are limited to discrimination for non-conformance with gender stereotypes as opposed to transgender status itself.[197] Thus, proponents of this limited view of Title VII discrimination would argue that an employer who fires a transgender employee because of personal distaste for transgender individuals (absent evidence of sex stereotyping) does not violate Title VII.

Second, supporters of the DOJ position argue that even if Title VII protects against transgender discrimination, policies requiring employees to use bathrooms matching their biological sex are not discriminatory because they affect all employees equally and, as such, are facially neutral.[198] Under this argument, policies requiring that employees use the bathroom matching their biological sex do not unfairly single out transgender employees or create disparate treatment in the terms, conditions, and privileges of employment.[199] While the right to a bathroom in the workplace is required, this side views employees’ ability to use the bathroom of their choice as a mere privilege.[200] When the privilege to use the bathroom of the employee’s choosing is withheld from all employees, employers argue these policies are evenly applied and non-discriminatory.[201]

In addition, supporters of the DOJ position argue that employer policies restricting transgender bathroom access serve public policy goals because they protect the majority of employees from feeling uncomfortable and unsafe in workplace bathrooms.[202] They buttress their position by arguing that because transgender people are a very small minority in America,[203] it is unreasonable to subject the interests of the many to the preferences of the very few.[204] They claim that requiring employers to permit transgender employees to use the bathrooms of their choice unfairly burdens the privacy and comfort of the vast majority of employees who are cisgender.[205] This view seeks to protect individuals like the plaintiff in Cruzan, who brought suit against her employer because she felt uncomfortable sharing a restroom with a transgender coworker and believed she had a “right to privacy and modesty which the school district must respect.”[206] Indeed, employers may feel that by allowing transgender employees to use the restroom of their choice, they are appeasing one or a few employees, while upsetting the rest and essentially giving “special treatment” to their transgender employees.[207]

Finally, supporters of the DOJ position may point to safety concerns, arguing permissive bathroom policies are rife for abuse and could allow predators unfettered access to female employees in the women’s bathroom. This argument has primarily come about in the context of bathroom bills like H.B. 2, but it could easily be extended to the workplace. For example, lawmakers who supported North Carolina’s H.B. 2 argued that it ensured women and children were not placed in a “vulnerable situation[] in . . . bathrooms and changing areas,” citing concerns that men might fraudulently pretend to be transgender to commit sexual assaults.[208] Opponents of this view argue these concerns are unfounded and unsupported by statistics.[209] Nonetheless, proponents of these restrictive policies may argue such policies offer protection to female employees and thus should be allowed for policy reasons.

B.  Supporters of the EEOC’s Position on Transgender Bathroom Access

Primarily, supporters of the EEOC’s position argue that Title VII’s use of “sex” should be interpreted to include gender identity for one of two reasons: 1) because Supreme Court precedent broadened the initial meaning of “sex”[210] or 2) because the plain language of “sex” naturally includes gender identity.[211] According to the first argument, Price Waterhouse broadened the meaning of sex discrimination by recognizing discrimination due to gender stereotyping; thus, regardless of the basic meaning of “sex,” sex discrimination under Title VII now necessarily encompasses notions of gender non-conformity.[212] Federal courts, including the Sixth Circuit, have embraced this view as a basis for transgender employees to seek relief from discrimination.[213] And some have pointed to the landmark Supreme Court case, Oncale v. Sundowner Offshore Services, as also broadening the scope of sex discrimination.[214]

In Oncale, the Supreme Court held for the first time that a man who was subjected to same-sex workplace harassment could bring a hostile work environment sex discrimination claim under Title VII.[215] This transgressed the traditional understanding of sex discrimination as discrimination against a woman because she is a woman and vice-versa. Writing for the majority, Justice Scalia argued that the interpretation of Title VII was not restricted to the intentions of Congress in 1964. So, despite conceding that Congress had not intended to attack same-sex harassment, he argued “statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.”[216] Thus, supporters of the EEOC position argue that taken together, Price Waterhouse and Oncale create an expanded base of coverage for transgender employees under Title VII’s sex discrimination prohibition.[217]

Second, some argue that a plain language interpretation of “sex” simply includes more than just genitalia. The Obama-era Justice Department made this argument in its Complaint against North Carolina in opposition to H.B. 2, arguing that an individual’s “sex” includes “multiple factors, which may not always be in alignment.”[218] These factors include “hormones, external genitalia, internal reproductive organs, chromosomes, and gender identity, which is an individual’s internal sense of being male or female.”[219] Thus, this argument suggests that limiting the interpretation of sex to sexual assignment at birth is overly restrictive and fails to capture the full picture of a person’s sex.[220]

Supporters of the EEOC’s position further argue that policies preventing transgender employers from using restrooms that match their gender identity are discriminatory because they disproportionately burden the transgender population.[221] According to this argument, these policies create an unequal situation in which “employees . . . may access bathrooms and changing facilities that are consistent with their gender identity in their places of work, while transgender employees may not access bathrooms and changing facilities that are consistent with their gender identity . . .[222] In this way, they argue, transgender people are unfairly singled out by restrictive bathroom policies and therefore face disparate treatment. Supporters also argue that these policies contribute to the stigmatization of transgender status and unfairly alienate transgender people from their fellow employees in the workplace.[223] Thus, these restrictive employer policies are discriminatory, in violation of Title VII.

Lastly, supporters of the EEOC position argue that policies restricting transgender bathroom access should be unlawful for policy reasons because they can cause serious harm to transgender employees.[224] According to transgender rights advocates, prohibiting transgender people from using restrooms corresponding with their gender identity may expose them to higher levels of violence.[225] As it is, transgender people are subject to very high levels of violent crime. For example, approximately half of the transgender population will be sexually assaulted in their lifetime, as opposed to onethird of women and onesixth of men.[226] Bathroom access implicates this issue because transgender people may be exposed to even greater risk of harassment or harm if they are forced to use restrooms not matching their gender identity, particularly if they are in the process of outwardly transitioning.[227] In fact, a survey conducted by UCLA’s Williams Institute found that almost 70% of transgender people have experienced a negative interaction in restrooms and that transgender people “who experienced issues [using the restroom] in the workplace felt it contributed to poor job performance, and some even changed jobs or simply quit their jobs to avoid the confrontations.”[228] In response to arguments from the other side, namely that allowing transgender individuals to use the bathroom of their choice threatens women, transgender rights advocates argue that these allegations are not supported by statistical evidence and present less severe threats of harm to cisgender people than to transgender people.[229]

Supporters of the EEOC’s position also argue that forcing transgender employees to use restrooms matching their biological sex can cause serious mental distress and physical health problems.[230] For instance, in its Complaint against North Carolina, the United States argued that H.B. 2’s prohibition on transgender peoples use of gender-corresponding restrooms caused them to suffer, “emotional harm, mental anguish, distress, humiliation, and indignity . . . .[231] This is in part because transgender people do not identify with the gender they were assigned at birth and may therefore be disaffirmed in their identity when their workplaces and coworkers categorize them as their biological sex.[232] In addition, policies restricting transgender bathroom access can cause physical health issues for transgender people, who may avoid workplace restrooms based upon fear of outing themselves as transgender, being confronted, or being harassed. One study found that 54% of transgender people had suffered “physical complications like dehydration, urinary tract infections, kidney infections, and other kidney problems simply because of the tactics they used to avoid going to the restroom during the day.”[233] Thus, supporters argue these mental and physical health issues unfairly burden transgender employees, and Title VII should be interpreted to protect against this form of discrimination.

VI.  Analysis

Accounting for the EEOC’s and DOJ’s competing interpretations of “sex,” the possible disparate treatment of transgender people in the workplace due to restrictive bathroom policies, and policy concerns, Title VII should be interpreted to protect against discrimination on the basis of transgender status. Moreover, denying transgender employees access to gender-affirming restrooms and other single-sex facilities should be regarded as a form of sex discrimination in violation of Title VII.

A.  Interpretation of “Sex” in Title VII

Title VII’s prohibition of sex discrimination should be interpreted to include gender identity discrimination for three reasons. First, Supreme Court precedents support a broad reading of sex discrimination. Second, an originalist approach to statutory interpretation is probably inappropriate in this case and thus does not preclude defining “sex” as encompassing gender identity. Third, “sex” is best understood as including transgender status given the spirit and purpose of Title VII.

First, the Supreme Court precedents, Price Waterhouse and Oncale, support an expansive interpretation of sex discrimination that encompasses notions of gender identity and expression, under which transgender individuals are protected. The Seventh Circuit’s argument in Ulane, that sex discrimination includes only discrimination against women for being women and men for being men, can no longer be the prevailing interpretation since the Court decided Price Waterhouse and Oncale. Given that discrimination against transgender individuals is typically based on the idea these individuals do not think or act like members of their biological sex should, transgender discrimination clearly finds a home under the Price Waterhouse sexstereotyping doctrine. Indeed, discrimination against individuals who are gender non-conforming is precisely the type of “reasonably comparable evil” Title VII prohibits, according to Justice Scalia’s Oncale opinion.

Second, the EEOC’s interpretation is persuasive because it is not contrary to lawmakers’ express intent. The intent of the original legislators who added sex discrimination to Title VII in 1964 is muddy; some argue the provision was only added as a last-minute poison pill to prevent the law’s passage,[234] while others dispute this claim, arguing the senator that originated the sex discrimination provision was sympathetic to feminist activists and wanted to ensure black women did not “enjoy more protection in the workplace—by virtue of their race—than white woman.”[235] Regardless, the interpretation of sex discrimination was unclear from its inception and has been a moving target ever since.[236] Legal scholars have long-criticized intentionalism because it can be difficult to discern the legislator’s intent and thus is a poor tool for interpreting law. As for Title VII, legislative intent may be even harder to pinpoint because it is not clear why sex discrimination was included. For these reasons, the interpretation of Title VII’s sex discrimination provision should not turn on legislative intent.

Third, Title VII should be read to protect employees from gender identity discrimination because this interpretation best reflects the broad goals of the remedial law. Title VII was designed to prevent employers from treating prospective or current employees unequally based on non-qualitative features like race, religion, national origin, or sex. Just as the law would protect a female employee who is not promoted because she is a woman (without regard for her skills or job performance), it should similarly protect transgender employees who are not given the same privileges and rights in employment as their cisgender peers merely because of their gender identity. By adopting a broad interpretation of “sex” to include more than the male-female gender binary, Title VII can better protect vulnerable populations from unfair employment actions, which is within the spirit, if not the letter, of Title VII. After all, even the Seventh Circuit, in issuing perhaps the strongest rejection of transgender rights under Title VII that remains in effect, acknowledged the well-recognized “maxim that remedial statutes [like Title VII] should be liberally construed.”[237] For these reasons, Title VII should be interpreted to prohibit discrimination on the basis of gender identity.

B.  Equal Bathroom Access and Discrimination

In addition, restricting bathroom access for transgender employees should be regarded as facial discrimination in violation of Title VII, even where alternatives like gender-neutral or private bathrooms are provided. Although employer policies requiring all employees to use bathrooms corresponding to their biological sex are facially neutral, this alone does not end the inquiry with respect to underlying discrimination. Upon a closer look, such policies are unquestionably discriminatory because they disproportionately impact transgender employees. While being legally required to use the bathroom matching one’s “official” sex is unlikely to ever inconvenience a cisgender person, such policies substantially impact the day-to-day life and working conditions of a transgender person.[238] Moreover, the employers intent in adopting these policies is to prevent transgender employees from using restrooms matching their gender identity, not cisgender employees. This alone should expose the discriminatory nature of facially neutral policies restricting bathroom access as they are designed to single out transgender employees and have clear discriminatory intent.[239]

It is important to note that policies requiring transgender employees to use private or gender-neutral facilities are often an improvement on policies requiring transgender employees to use gender-disaffirming bathrooms. But such policies are actually more discriminatory on their face because they clearly segregate the workplace by providing transgender individuals with different employment privileges than their peers. Even assuming the bathrooms provided are identical, this implicates the issue of “separate but equal,and, as Brown v. Board of Education made clear, such separate facilities are not equal.[240] For these reasons, policies restricting transgender bathroom access on the basis of gender identity are probably discriminatory under Title VII.

C.  Policy Implications of Bathroom Access

Finally, policy reasons, including the safety and health of transgender individuals, weigh in favor of finding bathroom bills and similar policies impermissible under Title VII. Transgender individuals are disproportionately vulnerable to sexual and physical violence. Requiring them to use restrooms not matching their gender identity may expose them to even greater levels of assault and violence by outing them as “other” in facilities meant to ensure privacy. Although there are concerns about the health and safety of employees if violent predators manage to abuse permissive bathroom access policies, these concerns are not based on evidence. This is in sharp contrast to the abundance of evidence showing that transgender individuals are a particularly vulnerable minority group. For these reasons, public policy warrants protecting transgender individuals’ access to gender-affirming workplace bathrooms.

Public policy also supports greater transgender bathroom access for health reasons. Many transgender individuals report experiencing serious health issues, including kidney stones and bladder infections, as a result of avoiding public bathrooms and the conflicts that arise in them. Moreover, forcing transgender individuals to use restrooms that do not match their gender identity can be emotionally damaging, psychologically disaffirming, and otherwise harmful to a group already subject to higher than average levels of depression and suicide.[241]

This Note does not ignore the concerns of some individuals who are made uncomfortable by the notion of sharing single-sex facilities with transgender coworkers, whom they perceive to be from the opposite sex. However, the discomfort of these employees does not justify imposing serious and life-threatening harms on transgender employees through restrictive bathroom policies. It also does not justify the exclusion of transgender individuals as “other” that results when transgender employees are forced to use gender-neutral bathrooms. This is especially true given that people share bathrooms with transgender people every day without ever knowing it.[242] Notably, individuals who did not want to share spaces with members of a different race during the Civil Rights movement made similar arguments.[243] As the argument failed then, so too should it fail today.

Ultimately, the greater severity of physical and mental harm to transgender employees outweighs the potential for harm to their coworkers. For these policy reasons, Title VII should be read to protect transgender employees from discrimination.

Conclusion

Transgender bathroom access is a morass. With sharp divisions among the courts, the states, and even the executive branch of the federal government, it is unclear when and how this issue will be resolved. This is punctuated by the fact that the Supreme Court will not hear a single case involving transgender rights this term. Yet there is a path forward, and it may exist in the building momentum toward recognizing a protection for transgender employees under Title VIIs sex discrimination prohibition. Supreme Court precedent that takes an expansive view of sex discrimination and societys growing understanding of gender identity and expression provides good reason to read Title VII to protect transgender employees. Such a reading of Title VII is also compelling because it protects one of the Unites States most vulnerable populations from further harm. It is this approach that best meets the remedial goals of Title VII, providing the most equality, justice, liberty, and protection for minorities. As such, it is the approach the Supreme Court should take when it hears this issue in the future.

 


[*] *. Executive Senior Editor, Southern California Law Review, Volume 91; J.D. 2018, University of Southern California Gould School of Law; B.A. Political Science 2014, University of California, Los Angeles. I would like to thank Professor Ronald Garet and Professor David B. Cruz for their assistance and valuable insights on this project. I would also like to thank Kathy Bader and Seth Jones for their support. Finally, I would like to thank the staff and editors of the Southern California Law Review for their excellent work.

 [1]. Michael Hughes, Transgender Lives: Your Stories, N.Y. Times, https://nyti.ms/2FdI6DG (last visited May 9, 2018).

 [2]. Flores et al., Williams Institute, How Many Adults Identify as Transgender in the United States? 23 (2016), http://williamsinstitute.law.ucla.edu/wp-content/uploads/How-Many-Adults-Identify-as-Transgender-in-the-United-States.pdf.

 [3]. Restroom Access for Transgender Employees, Human Rights Campaign, http://www.hrc.org/resources/restroom-access-for-transgender-employees (last visited May 9, 2018).

 [4]. Mitch Kellaway, Trans Folks Respond to ‘Bathroom Bills’ With #WeJustNeedtoPee Selfies, Advocate (Mar. 14, 2015), https://www.advocate.com/politics/transgender/2015/03/14/trans-folks-respond-bathroom-bills-wejustneedtopee-selfies.

 [5]. German Lopez, Tennessee’s Anti-Transgender Bathroom Bill, Explained, Vox (Apr. 7, 2016, 9:10 AM), https://www.vox.com/2016/4/7/11381400/tennessee-transgender-bathroom-bill.

 [6]. Id.

 [7]. See Public Facilities Privacy & Security Act, ch. 3, 2016 N.C. Sess. Laws 12 (codified as amended at N.C. Gen Stat. § 143-760 (2016)), repealed by ch.4, 2017 N.C. Sess. Laws 1 [hereinafter H.B. 2]; Joellen Kralik, “Bathroom Bill” Legislative Tracking, National Conference of State Legislators (July 28, 2017), http://www.ncsl.org/research/education/-bathroom-bill-legislative-tracking635951130.aspx.

 [8]. Jason Hanna, Madison Park & Elliot C. McLaughlin, North Carolina Repeals “Bathroom Bill,” CNN Politics, https://www.cnn.com/2017/03/30/politics/north-carolina-hb2-agreement/index
.html (last updated Mar. 30, 2017, 9:36 PM).

 [9]. Notably, in North Carolina, an individual may only change the sex marker on their birth certificate if they have undergone full sexual reassignment surgery. See Changing Birth Certificate Sex Designations: State-By-State Guidelines, Lambda Legal, https://www.lambdalegal.org/know-your-rights/article/trans-changing-birth-certificate-sex-designations (last visited May 9, 2018).

 [10]. David A. Graham, North Carolina Overturns LGBT-Discrimination Bans, Atlantic (Mar. 24, 2016), https://www.theatlantic.com/politics/archive/2016/03/north-carolina-lgbt-discrimination-transgender-bathrooms/475125.

 [11]. See, e.g., Michael Gordon et al., Understanding HB2: North Carolina’s Newest Law Solidifies State’s Role in Defining Discrimination, Charlotte Observer (March 26, 2016, 11:00AM), http://www.charlotteobserver.com/news/politics-government/article68401147.html; Avianne Tan, North Carolina’s Controversial “Anti-LGBT” Bill Explained, ABC News (Mar. 24, 2016, 6:51 PM), http://abcnews.go.com/US/north-carolinas-controversial-anti-lgbt-bill-explained/story?id=37898153; Judy Woodruff & John Yang, How North Carolina Signed a Bill Dubbed the Most Anti-LGBT Law in the U.S., PBS (Mar. 24, 2016, 8:07 PM), https://www.pbs.org/newshour/show/how-north-carolina-signed-a-bill-dubbed-most-anti-lgbt-law-in-the-u-s.

 [12]. Craig Jarvis et al., McCrory, NC Lawmakers Sue Justice Department Over HB2; Feds Counter With Lawsuit, Charlotte Observer (May 9, 2016, 10:35 AM) http://www.charlotteobserver.com/news/politics-government/article76502777.html; McCrory Drops House Bill 2 Lawsuit, Cites Costs, Assoc. Press (Sept. 18, 2016), http://abc11.com/politics/mccrory-drops-house-bill-2-lawsuit-cites-costs/1516428; Press Release, U.S. Dep’t of Justice, Justice Department Files Complaint Against the State of North Carolina to Stop Discrimination Against Transgender Individuals (May 9, 2016), https://www.justice.gov/opa/pr/justice-department-files-complaint-against-state-north-carolina-stop-discrimination-against.

 [13]. Tom Jensen, HB 2 Deeply Unpopular in North Carolina; Voters Think It’s Hurting State, Pub. Pol’y Polling (Apr. 25, 2016), http://www.publicpolicypolling.com/main/2016/04/hb-2-deeply-unpopular-in-north-carolina-voters-think-its-hurting-state.html.

 [14]. See ch.4, 2017 N.C. Sess. Laws 1 (codified as amended at N.C. Gen Stat. § 143-760 (2017)); Allen Smith, N.C. Repeals “Bathroom Bill,” Pre-Empts Local Employment Laws, Soc’y for Human Resource Mgmt. (Mar. 31, 2017), https://www.shrm.org/resourcesandtools/legal-and-compliance/state-and-local-updates/pages/h.b.-2-repeal.aspx.

 [15]. These states are: Alabama, Arkansas, Illinois, Kansas, Kentucky, Minnesota, Missouri, Montana, New York, South Carolina, South Dakota, Tennessee, Texas, Virginia, Washington, and Wyoming. Joellen Kralik, “Bathroom Bill” Legislative Tracking, Nat’l Conf. of State Legislators (July 28, 2017), http://www.ncsl.org/research/education/-bathroom-bill-legislative-tracking635951130
.aspx.

 [16]. Id.

 [17]. Laws, Regulations & Guidance: Title VII and the Civil Rights Act of 1964, Equal Emp. Opportunity Commission, https://www.eeoc.gov/laws/statutes/titlevii.cfm (last visited May 9, 2018) [hereinafter EEOC].

 [18]. Office for Civil Rights, U.S. Dep’t of Educ., Dear Colleague Letter: Transgender Students (May 13, 2016), http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201605-title-ix-transgender.pdf; Title VII and the Civil Rights Act, supra note 17; Bathroom/Facility Access and Transgender Employees, Equal Emp. Opportunity Commission, https://www.eeoc.gov/eeoc
/publications/fs-bathroom-access-transgender.cfm (last visited May 15, 2018).

 [19]. Chris Geidner, Justice Department Will Now Support Transgender Discrimination Claims in Litigation, BuzzFeed News (Dec. 18, 2014, 11:06 AM), https://www.buzzfeed.com/chrisgeidner
/justice-department-announces-reversal-on-litigating-transgen?utm_term=.vhkNLmjp3#.sjyP4705N.

 [20]. William Duncan, How the Feds Began Rewriting Title IX To Push Trans Policies, Federalist (May 25, 2016), http://thefederalist.com/2016/05/25/how-the-feds-began-rewriting-title-ix-to-push-trans-policies/; Eugene Volokh, Successful Religious Freedom Defense in Title VII Case Brought by Transgender Employee, Wash. Post: Volokh Conspiracy (Aug. 19, 2016), https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/08/19/successful-religious-freedom-defense-in-title-vii-case-brought-by-transgender-employee.

 [21]. Kevin Johnson, Jeff Sessions: Transgender People Not Protected from Workplace Discrimination, USA Today (Oct. 5, 2017, 4:45 PM), https://www.usatoday.com/story/news/politics
/2017/10/05/jeff-sessions-transgender-people-not-protected-workplace-discrimination/735709001.

 [22]. Compare Jae Alexis Lee, What if a Pervert Pretending to be Transgender Entered the Opposite Sex’s Bathroom?, Huffington Post (Oct. 28, 2017), http://www.huffingtonpost.com
/quora/what-if-a-pervert-pretend_b_12677938.html, with Nicole Russell, Don’t Put My Five-Year-Old Girl in a Bathroom with a Transgender Boy, Federalist (July 24, 2015), http://thefederalist.com
/2015/07/24/transgender-bathroom-my-daughter.

 [23]. Katy Steinmetz, Why LGBT Advocates Say Bathroom “Predators” Argument Is a Red Herring, Time (May 2, 2016), http://time.com/4314896/transgender-bathroom-bill-male-predators-argument.

 [24]. See, e.g., Jeff Brady, When a Transgender Person Uses a Public Bathroom, Who Is at Risk?, NPR (May 15, 2016, 7:48 AM), http://www.npr.org/2016/05/15/477954537/when-a-transgender-person-uses-a-public-bathroom-who-is-at-risk.

 [25]. See Transgender FAQ, GLAAD, http://www.glaad.org/transgender/transfaq (last visited May 15, 2018).

 [26]. Id.

 [27]. Id.

 [28]. Id.

 [29]. Id.

 [30]. Id.

 [31]. Id.

 [32]. Id.

 [33]. See American Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental Disorders 451 (5th ed. 2013). See also Wynne Parry, Gender Dysphoria: DSM-5 Reflects Shift in Perspective on Gender Identity, Huffington Post, http://www.huffingtonpost.com/2013/06/04
/gender-dysphoria-dsm-5_n_3385287.html (last updated Aug. 4, 2013).

 [34]. Ranna Parekh, What is Gender Dysphoria?: Treatment, Am. Psychiatric Ass’n, https://www.psychiatry.org/patients-families/gender-dysphoria/what-is-gender-dysphoria (last updated Feb. 2016).

 [35]. Id.

 [36]. Fenway Health, Glossary of Gender & Transgender Terms 15 (2010), http://fenwayhealth.org/documents/the-fenway-institute/handouts/Handout_7-C_Glossary_of_Gender
_and_Transgender_Terms__fi.pdf.

 [37]. See Avery Martens, Commentary, Transgender People Have Always Existed, ACLU Ohio (June 10, 2016), http://www.acluohio.org/archives/blog-posts/transgender-people-have-always-existed; A Map of Gender-Diverse Cultures, PBS (Aug. 11, 2015), http://www.pbs.org/independentlens
/content/two-spirits_map-html.

 [38]. John Leland, A Spirit of Belonging, Inside and Out, N.Y. Times (Oct. 8, 2006), http://www.nytimes.com/2006/10/08/fashion/08SPIRIT.html.

 [39]. See generally Harlan Pruden & Se-ah-dom Edmo, Two-Spirit People: Sex, Gender & Sexuality in Historic and Contemporary Native America (2014), http://www.ncai.org/policy-research-center/initiatives/Pruden-Edmo_TwoSpiritPeople.pdf.

 [40]. Trista Wilson, Comment, Changed Embraces, Changes Embraced? Renouncing the Heterosexist Majority in Favor of a Return to Traditional Two-Spirit Culture, 36 Am. Indian L. Rev. 161, 169 (2011).

 [41]. Steve Hendrix, A History Lesson for Trump: Transgender Soldiers Served in the Civil War, Wash. Post (Aug. 25, 2017), https://www.washingtonpost.com/news/retropolis/wp/2017/07/26/a-history-lesson-for-trump-transgender-soldiers-served-in-the-civil-war/?utm_term=.79df6a8d4c44.

 [42]. Id.

 [43]. John T. McQuiston, Christine Jorgensen, 62, Is Dead; Was First to Have a Sex Change, N.Y. Times (May 4, 1989), http://www.nytimes.com/1989/05/04/obituaries/christine-jorgensen-62-is-dead-was-first-to-have-a-sex-change.html.

 [44]. See, e.g., Erica Keppler, Chaz Bono’s Place in History, Huffington Post, http://www.huffingtonpost.com/erica-keppler/chaz-bonos-place-in-histo_b_981508.html (last updated Feb. 2, 2016); Lana Wachowski Received the HRC Visibility Award, Human Rights Campaign (Oct. 25, 2012), https://www.hrc.org/videos/videos-lana-wachowski-receives-the-hrc-visibility-award.

 [45]. Aleksandra Gjorgievska & Lily Rothman, Laverne Cox Is the First Transgender Person Nominated for an Emmy—She Explains Why That Matters, TIME (July 10, 2014, 4:00 PM), http://time.com/2973497/laverne-cox-emmy.

 [46]. Katy Steinmetz, Laverne Cox Talks to TIME About the Transgender Movement, TIME (May 29, 2014), http://time.com/132769/transgender-orange-is-the-new-black-laverne-cox-interview.

 [47]. Daniel D’Addario, Bruce Jenner Comes Out as Transgender: “For All Intents and Purposes, I Am a Woman”, TIME (Apr. 24, 2015, 10:53 PM), http://time.com/3835205/bruce-jenner-diane-sawyer-transgender.

 [48]. Arash Markazi, How Bruce Jenner Became an Olympic Icon Exactly 39 Years Ago, ESPN (July 30, 2015), http://www.espn.com/olympics/story/_/id/13346959/bruce-jenner-became-olympic-icon-exactly-39-years-ago.

 [49]. Susan Milligan, Danica Roem Becomes First Transgender Woman to Win State Seat, U.S. News (Nov. 7, 2017, 9:53 PM), https://www.usnews.com/news/politics/articles/2017-11-07/danica-roem-becomes-first-transgender-woman-to-win-state-seat-in-virginia.

 [50]. See U.S. Const. amend. XIV.

 [51]. Compare Adkins v. City of New York, 143 F. Supp. 3d 134, 139 (S.D.N.Y. 2015), with Glenn v. Brumby, 663 F.3d 1312, 1319 (11th Cir. 2011).

 [52]. About ENDA, Americans for Workplace Opportunity, http://web.archive.org
/web/20160318164443/http://workplaceopportunity.org/about-enda (last visited May 15, 2018).

 [53]. See Shaan Rizvi, The Latest LGBT Legal Updates for the Workplace, Employment Practices Solutions (Feb. 28, 2017), http://www.epspros.com/news-resources/whitepapers/2017/the-latest-lgbt-legal-update-for-the-workplace%20.html.

 [54]. Cities and Counties with Non-Discrimination Ordinances that Include Gender Identity, Human Rights Campaign, https://www.hrc.org/resources/cities-and-counties-with-non-discrimination
-ordinances-that-include-gender (last visited May 15, 2018).

 [55]. Id.

 [56]. Aaron Lacey & Jesse Doggendorf, A Look at the Legal Issues in the Transgender Bathrooms Debate, Thompson Coburn LLP (Aug. 5, 2016), http://www.thompsoncoburn.com/insights/blogs
/regucation/post/2016-08-05/a-look-at-the-legal-issues-in-the-transgender-bathrooms-debate.

 [57]. See Angela Dallara, Groundbreaking Report Reflects Persistent Discrimination Against Transgender Community, GLAAD (Feb. 4, 2011), https://www.glaad.org/2011/02/04/groundbreaking-report-reflects-persistent-discrimination-against-transgender-community. See generally Jaime M. Grant et al., Injustice at Every Turn: A Report of the National Transgender Discrimination Survey (2011), https://transequality.org/sites/default/files/docs/resources/NTDS
_Report.pdf.

 [58]. Katy Steinmetz, Why Transgender People Are Being Murdered at a Historic Rate, TIME (Aug. 17, 2015), http://time.com/3999348/transgender-murders-2015.

 [59]. Grant et al., supra note 57.

 [60]. National Equality Map, Transgender L. Ctr., https://transgenderlawcenter.org
/equalitymap (last updated Feb. 7, 2018).

 [61]. Id.

 [62]. Id.

 [63]. Id.

 [64]. “Bathroom Bill” Legislative Tracking, supra note 7.

 [65]. Id.

 [66]. Jeremy B. White, All-Gender Bathroom Bill Passes California Assembly, Sac. Bee (May 9, 2016, 2:25 PM), http://www.sacbee.com/news/politics-government/capitol-alert/article76595197.html.

 [67]. Kwegyirba Croffie, Vermont Passes Gender-Neutral Bathroom Bill, CNN (May 13, 2018, 8:50 PM), https://www.cnn.com/2018/05/13/us/vermont-gender-neutral-restroom-bill/index.html.

 [68]. See, e.g., NC Gov Defends “Bathroom Bill,” Says Law Is About Privacy, Not Discrimination, Fox News (Apr. 29, 2016), http://www.foxnews.com/politics/2016/04/29/nc-gov-defends-bathroom-bill-says-law-is-about-privacy-not-discrimination.html.

 [69]. Alia E. Dastagir, The Imaginary Predator in America’s Transgender Bathroom War, USA Today (Apr. 29, 2016, 5:32 PM), http://www.usatoday.com/story/news/nation/2016/04/28
/transgenderbathroom-bills-discrimination/32594395.

 [70]. See, e.g., Interpretation of 20 C.F.R. 1910.141(c)(1)(i): Toilet Facilities, Occupational Safety and Health Admin. (Apr. 4, 1998), https://www.osha.gov/pls/oshaweb/owadisp.show_document?p
_table=INTERPRETATIONS&p_id=22932; Occupational Safety and Health Admin., Best Practices: A Guide to Restroom Access for Transgender Workers (2015) https://www.osha.gov/Publications/OSHA3795.pdf. 

 [71]. Best Practices, supra note 70.

 [72]. Id.

 [73]. EEOC, supra note 17.

 [74]. Lusardi v. Dep’t of the Army, EEOC Appeal No. 0120133395, 2015 WL 1607756, at *6 (Apr. 1, 2015).

 [75]. See generally Price Waterhouse v. Hopkins, 490 U.S. 228 (1989); Ulane v. E. Airlines Inc., 742 F.2d 1081 (7th Cir. 1984); Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004); Barnes v. City of Cincinnati, 401 F.3d 729 (6th Cir. 2005) (collecting cases).

 [76]. See, e.g., Gillian Thomas, Because of Sex 1–7 (2016); Scott Highhouse, The History Corner: Was the Addition of Sex to Title VII a Joke? Two Viewpoints, Soc’y for Indust. & Org. Psych., http://www.siop.org/tip/jan11/12highhouse.aspx (last visited May 15, 2018); Mark Joseph Stern, How a 1964 Civil Rights Law Makes North Carolina’s Bathroom Bill Illegal, Slate (May 18, 2016, 10:14 AM), http://www.slate.com/blogs/outward/2016/05/18/sex_discrimination_is_trans
_discrimination_gilliam_thomas_explains.html.

 [77]. See Thomas, supra note 76, at 3.

 [78]. See Jo Freeman, How “Sex” Got into Title VII: Persistent Opportunism As a Maker of Public Policy, 9 Law & Ineq. 163, 163–75 (1991).

 [79]. Id.

 [80]. Id.

 [81]. Ulane v. E. Airlines, Inc., 742 F.2d 1081, 1082 (7th Cir. 1984).

 [82]. Id.

 [83]. Id.

 [84]. Ulane v. E. Airlines, Inc., 581 F. Supp. 821, 823, 825 (N.D. Ill. 1983), rev’d, 742 F.2d 1081 (7th Cir. 1984), cert. denied, 471 U.S. 1017 (1985) (“After listening to the evidence in this case, it is clear to me that there is no settled definition in the medical community as to what we mean by sex.”).

 [85]. Id. at 823–25.

 [86]. See id.

 [87]. See Ulane, 742 F.2d at 1084–87.

 [88]. Price Waterhouse v. Hopkins, 490 U.S. 228, 250 (1989).

 [89]. Id. at 228–36.

 [90]. Id. at 235.

 [91]. Id.

 [92]. Thomas Bourgeois, Title VII Protections for Transgender and Transsexual Employees, La. L. Rev. (Oct. 28, 2015), https://lawreview.law.lsu.edu/2015/10/28/title-vii-protections-for-transgender-and-transsexual-employees.

 [93]. Title IX and Sex Discrimination, Office for Civil Rights, https://www2.ed.gov/about
/offices/list/ocr/docs/tix_dis.html (last updated Apr. 2015).

 [94]. Robert Barnes, Supreme Court Sends Virginia Transgender Case Back to Lower Court, Wash. Post (Mar. 6, 2017), http://wapo.st/2mvVo80?tid=ss_mail&utm_term=.38cd70402500.

 [95]. See Doe v. Reg’l Sch. Unit 26, 86 A.3d 600, 607 (2014).

 [96]. See Mathis v. Fountain-Fort Carson Sch. Dist. No. 8, Charge No. P20130034X, (Colo. Civ. Rights Div. 2013), https://archive.org/stream/716966-pdf-of-coy-mathis-ruling/716966-pdf-of-coy-mathis-ruling_djvu.txt.

 [97]. G.G. ex rel. Grimm v. Gloucester Cty. Sch. Bd., 822 F.3d 709, 718 (4th Cir. 2016).

 [98]. G.G. v. Gloucester County School Board, Am. Civil Liberties Union, https://www.aclu.org/cases/gg-v-gloucester-county-school-board (last updated Mar. 6, 2017) [hereinafter ACLU].

 [99]. See Gloucester County School Board v. G.G., SCOTUSBlog, http://www.scotusblog.com
/case-files/cases/gloucester-county-school-board-v-g-g (last updated Apr. 7, 2017).

 [100]. ACLU, supra note 98.

 [101]. Barnes, supra note 94.

 [102]. German Lopez, Watch Donald Trump Reach Out to “L, G, B, T . . . Q” Americans, Vox (July 21, 2016, 11:34 PM), https://www.vox.com/2016/7/21/12254616/trump-acceptance-speech-lgbtq-rnc.

 [103]. Michelangelo Signorile, Why Donald Trump Unfurled an Upside Down Rainbow Flag Onstage, Huffington Post (November 1, 2016, 11:19 AM), https://www.huffingtonpost.com/entry
/why-donald-trump-unfurled-an-upside-down-rainbow-flag-onstage_us_58189a60e4b0990edc336c51.

 [104]. Karma Allen, Trump’s Reversal of Transgender Bathroom Guidance Contradicts His Past Claims of Support, ABC News (Feb. 23, 2017, 2:16 AM), http://abcnews.go.com/Politics/trumps-reversal-transgender-bathroom-guidance-contradicts-past-claims/story?id=45678113.

 [105]. Id.

 [106]. Deena Zaru, Caitlyn Jenner Takes Trump Up on the Offer, CNN Pol. (Aug. 16, 2017, 8:59 PM), http://www.cnn.com/2016/04/28/politics/caitlyn-jenner-bathroom-trump-tower-donald-trump
/index.html.

 [107]. Trump Rolls Back Transgender Bathroom Guidelines for Schools, Fortune (Feb. 23, 2017), http://fortune.com/2017/02/22/trump-lgbt-transgender-bathroom-guidelines.

 [108]. Id.

 [109]. How Liberals and Conservatives Are Reacting to Trump’s Transgender Bathroom Decision, Fortune (Feb. 23, 2017), http://fortune.com/2017/02/22/trump-transgender-school-bathroom-reaction.

 [110]. Donald J. Trump (@realDonaldTrump), Twitter (July 26, 2017, 5:55 AM), https://twitter.com/realDonaldTrump/status/890193981585444864?ref_src=twsrc%5Etfw; Donald J. Trump (@realDonaldTrump), Twitter (July 26, 2017, 6:04 AM), https://twitter.com/realDonaldTrump
/status/890196164313833472?refsrc=twsrc%5Etfw; Donald J. Trump (@realDonaldTrump), Twitter (July 26, 2017, 6:08 AM), https://twitter.com/realDonaldTrump/status/890197095151546369?ref
_src=twsrc%5Etfw. See also Zeke J. Miller, President Trump Has Taken a Key Step to Implement His Transgender Military Ban, TIME (Aug. 25, 2017), http://time.com/4916871/donald-trump-transgender-military-ban.

 [111]. German Lopez, Trump’s Justice Department Just Rescinded a Memo Protecting Transgender Workers, Vox (Oct. 5, 2017, 11:08 AM), https://www.vox.com/identities/2017/10/5/16429800/trump-sessions-transgender-workers.

 [112]. Id.

 [113]. German Lopez, It’s Not Only the Military. Trump’s Administration Just Took Another Big Anti-LGBTQ Step., Vox (July 27, 2017, 9:50 AM), https://www.vox.com/identities/2017/7/27
/16049306/trump-sessions-justice-department-lgbtq.

 [114]. Press Release, U.S. White House, President Donald J. Trump Will Continue to Enforce Executive Order Protecting the Rights of the LGBTQ Community in the Workplace (Jan. 31, 2017), https://www.whitehouse.gov/briefings-statements/president-donald-j-trump-will-continue-enforce-executive-order-protecting-rights-lgbtq-community-workplace.

 [115]. Id.

 [116]. See Lopez, supra note 1111.

 [117]. See Michelle E. Phillips, EEOC Stresses Title VII Bars Discrimination Against Transgender Workers, Including Regarding Bathroom Access, Jackson Lewis (May 4, 2016), https://www.jacksonlewis.com/publication/eeoc-stresses-title-vii-bars-discrimination-against-transgender-workers-including-regarding-bathroom-access.

 [118]. Id.

 [119]. About EEOC, Equal Employment Opportunity Comm’n, https://www.eeoc.gov/eeoc (last visited May 15, 2018).

 [120]. What You Should Know About EEOC and the Enforcement Protections for LGBT Workers, Equal Employment Opportunity Comm’n, https://www.eeoc.gov/eeoc/newsroom/wysk
/enforcement_protections_lgbt_workers.cfm (last visited May 15, 2018).

 [121]. Id.

 [122]. Id.

 [123]. Id. See generally Macy v. Holder, EEOC Appeal No. 0120120821, 2012 WL 1435995 (Apr. 20, 2012) (discussing an EEOC decision that held that failing to hire a transgender woman can be sex discrimination).

 [124]. See Press Release, EEOC, Deluxe Financial to Settle Sex Discrimination Suit on Behalf of Transgender Employee (Jan. 21, 2016), https://www.eeoc.gov/decisions/0120133395.txt.

 [125]. Lusardi v. McHugh, EEOC Appeal No. 0120133395, 2015 WL 1607756, at *1 (Apr. 1, 2015).

 [126]. See, e.g., Fowlkes v. Ironworkers Local 40, 790 F.3d 378, 386 (2d Cir. 2015); Brown v. Subway Sandwich Shop of Laurel, Inc., No. 2:15-CV-77-KS-MTP, 2016 U.S. Dist. LEXIS 76526, at *5–6 (S.D. Miss. 2016); Doe v. Arizona, No. CV-15-02399-PHX-DGC, 2016 WL 1089743, at *2 (D. Ariz. 2016); Roberts v. Clark Cty. Sch. Dist., 215 F. Supp. 3d 1001, 1014 n.104 (D. Nev. 2016); Martin v. EEOC, 19 F. Supp. 3d 291, 297 (D.D.C. 2014).

 [127]. Macy v. Holder, EEOC Appeal No. 0120120821, 2012 WL 1435995, at *1 (Apr. 20, 2012).

 [128]. Fact Sheet: Bathroom/Facility Access and Transgender Employees, Equal Employment Opportunity Comm’n, https://www.eeoc.gov/eeoc/publications/fs-bathroom-access-transgender.cfm (last viewed May 15, 2018).

 [129]. Id. See also Lusardi v. McHugh, EEOC Appeal No. 0120133395, 2015 WL 1607756 at *8 (Apr. 1, 2015).

 [130]. Lusardi, 2015 WL 1607756, at *1.

 [131]. Id. at *2.

 [132]. Id.

 [133]. Id. at *10.

 [134]. See, e.g., Ryan v. Grae & Rybicki P.C., 135 F.3d 867, 870 (2d Cir. 1998).

 [135]. See Rizvi, supra note 533; Patrick Dorrian, EEO Roundup: What Deference Do Courts Give to the EEOC’s Views?, Bloomberg BNA (June 8, 2016), https://www.bna.com/eeo-roundup-deference-b57982073811 (discussing the deference given to the EEOC).

 [136]. Best Practices, supra note 70, at 1.

 [137]. Id.

 [138]. Id. (emphasis added).

 [139]. Id. at 2.

 [140]. Office of Fed. Contract Compliance Programs, Dep’t of Labor, Frequently Asked Questions: Sexual Orientation and Gender Identity, https://www.dol.gov/ofccp/LGBT/LGBT_FAQs.html#Q24 (last visited May 15, 2018).

 [141]. Id.

 [142]. See, e.g., Examples of Court Decisions Supporting Coverage of LGBT-Related Discrimination Under Title VII, Equal Employment Opportunity Comm’n, https://www.eeoc.gov
/eeoc/newsroom/wysk/lgbt_examples_decisions.cfm (last visited May 15, 2018); Scott Rabe, Sam Schwartz-Fenwick & Marlin Duro, TITLE VII: Court Breaks from Department of Justice on Transgender Rights, Seyfarth Shaw: Employment Law Outlook (Nov. 2, 2017), https://www.laborandemploymentlawcounsel.com/2017/11/title-vii-court-breaks-from-department-of-justice-on-transgender-rights.

 [143]. Equality Maps: Federal Courts Decisions Title VII: Gender Identity, Movement Advancement Project, http://www.lgbtmap.org/equality-maps/federal_court_decisions (last updated May 15, 2018).

 [144]. Id.

 [145]. Id.

 [146]. See generally Barnes v. City of Cincinnati, 401 F.3d 729 (6th Cir. 2005); Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004); Rosa v. Park West Bank & Trust Co., 214 F.3d 213 (1st Cir. 2000); Schwenk v. Hartford, 204 F.3d 1187 (9th Cir. 2000); Glenn v. Brumby, 72 4 F. Supp. 2d 1284 (N.D. Ga. 2010), aff’d, 663 F.3d 1312 (11th Cir. 2011).

 [147]. See cases cited supra note 1466.

 [148]. Barnes v. City of Cincinnati, 401 F.3d 729, 741 (6th Cir. 2005); Smith v. City of Salem, 378 F.3d 566, 575 (6th Cir. 2004). See also Sexual Orientation and Transgender Discrimination, Katz, Marshall & Banks, LLP http://www.kmblegal.com/practice-areas/discrimination-retaliation/sexual-orientation-transgender-discrimination (last visited May 15, 2018).

 [149]. Smith, 378 F.3d at 572. See also Eric S. Dreiband & Brett Swearingen, The Evolution of Title VII—Sexual Orientation, Gender Identity, and the Civil Rights Act of 1964 7–8 (2015).

 [150]. Smith, 378 F.3d at 575.

 [151]. Barnes, 401 F.3d at 733. See also Dreiband & Swearingen, supra note 14949, at 8.

 [152]. Barnes, 401 F.3d at 737–38.

 [153]. Glenn v. Brumby, 663 F.3d 1312, 1313–14 (11th Cir. 2011).

 [154]. Id. at 1316.

 [155]. Id. at 1320–21.

 [156]. Id. 1316–17.

 [157]. Id. at 1318–19.

 [158]. See Macy v. Holder, EEOC Appeal No. 0120120821, 2012 WL 1435995, at *7–10 (Apr. 20, 2012) (“Thus, a transgender person who has experienced discrimination based on his or her gender identity may establish a prima facie case of sex discrimination through any number of different formulations.”).

 [159]. Id. at *7–8.

 [160]. Schroer v. Billington, 577 F. Supp. 2d 293, 305 (D.D.C. 2008).

 [161]. Id. at 307–08.

 [162]. Id. at 306–07.

 [163]. See, e.g., Etsitty v. Utah Transit Auth., 502 F.3d 1215, 1221 (10th Cir. 2007); Ulane v. E. Airlines Inc., 742 F.2d 1081 (7th Cir. 1984).

 [164]. Etsitty, 502 F.3d at 1218.

 [165]. Id. at 1224–25.

 [166]. Id. at 1221–22.

 [167]. Id. at 1222.

 [168]. See, e.g., Glenn v. Brumby, 663 F.3d 1312, 1318 n.5 (11th Cir. 2011) (discussing the impact of Price Waterhouse on the Ulane decision); Chavez v. Credit Nation Auto Sales, 49 F. Supp. 3d 1163, 1189–90 (N.D. Ga. 2014) (same).

 [169]. See Hively v. Ivy Tech Cmty. Coll. of Ind., 853 F.3d 339, 345–46 (7th Cir. 2017). For an argument that Hively overruled Ulane, see Mark Joseph Stern, The 7th Circuit’s Landmark Anti-Gay Discrimination Ruling is also Great News for Trans Rights, Slate (Apr. 5, 2017, 2:16 PM), http://www.slate.com/blogs/outward/2017/04/05/_7th_circuit_decision_in_hively_is_great_news_for_trans_rights.html (“Hively therefore overturned Ulane.”).

 [170]. Id.

 [171]. Id. at 350–51.

 [172]. Id. at 351–52.

 [173]. Roberts v. Clark Cty. Sch. Dist., 215 F. Supp. 3d 1001, 1014–15 (D. Nev. 2016).

 [174]. Id. at 1005–06.

 [175]. Id.

 [176]. Id. at 1015.

 [177]. Id. at 1016.

 [178]. Id.

 [179]. Mickens v. GE Co., No. 3:16CV-00603-JHM, 2016 U.S. Dist. LEXIS 163961, at *10 (W.D. Ky. 2016).

 [180]. Id. at *2–3.

 [181]. Id. at *8–9.

 [182]. Id. at *9.

 [183]. Cruzan v. Special Sch. Dist. No. 1, 294 F.3d 981, 982–83 (8th Cir. 2002).

 [184]. Id.

 [185]. Id. at 984.

 [186]. Id. at 982, 984.

 [187]. Id.

 [188]. See supra Parts III, IV.

 [189]. See Emily McCord, North Carolinians Who Support “Bathroom Law” Say They’re Being Drowned Out, NPR (May 15, 2016, 5:14 PM), http://www.npr.org/2016/05/15/477946675/north-carolinians-who-support-bathroom-law-say-theyre-being-drowned-out.

 [190]. Complaint for Declaratory Judgement at 6, McCrory v. United States, No 5:16-cv-00238-BO (E.D. N.C. May 9, 2016).

 [191]. See Jim S. McNeill & Peter Stockburger, Transgender Bathroom Debate: What’s the Deference?, Law360 (May 18, 2016, 1:07 PM), https://www.law360.com/articles/796989.

 [192]. Id.

 [193]. Ulane v. E. Airlines Inc., 742 F.2d 1081, 1084 (7th Cir. 1984).

 [194]. Id. at 1084–85.

 [195]. Id. at 1085.

 [196]. See, e.g., Dana Beyer, Jillian T. Weiss & Riki Wilchins, New Title VII and EEOC Rulings Protect Transgender Employees 3 (2014), http://transgenderlawcenter.org/wp-content
/uploads/2014/01/TitleVII-Report-Final012414.pdf.

 [197]. See Etsitty, 502 F.3d at 1223–24; Dreiband & Swearingen, supra note 1499. 

 [198]. See McNeill & Stockburger, supra note 191.

 [199]. Id.

 [200]. Nicole Russell, The Transgender Lobby’s Demands Are Not Civil Rights, Federalist (Nov. 22, 2016), http://thefederalist.com/2016/11/22/transgender-lobbys-demands-not-civil-rights.

 [201]. Id.

 [202]. Id.

 [203]. Transgender people are estimated to represent about 0.5% of the United States population. Flores et al., supra note 2, at 5.

 [204]. Business Leaders Support HB2 & Governor McCrory, Keep NC Safe, http://keepmyncsafe.com/hundreds-business-leaders-show-support-hb2-governor-mccrory (last updated Apr. 29, 2016).

 [205]. Id.; Complaint for Declaratory Judgement, supra note 190, at 2.

 [206]. Legal Battle is Building Over Transgender Librarian, Tuscaloosa News (Aug. 25, 1999), https://genderidentitywatch.com/2015/01/07/cruzan-v-special-school-dist-1-usa.

 [207]. Id.; Business Leaders Support HB2, supra note 204.

 [208]. Stevie Borrello, Sexual Assault and Domestic Violence Organizations Debunk “Bathroom Predator Myth”, ABC News (Apr. 22, 2016, 7:15 PM), http://abcnews.go.com/US/sexual-assault-domestic-violence-organizations-debunk-bathroom-predator/story?id=38604019.

 [209]. Id.

 [210]. See, e.g., Arthur S. Leonard, A Battle Over Statutory Interpretation: Title VII and Claims of Sexual Orientation and Gender Identity Discrimination, Other Publications, 2017, at 3.

 [211]. See, e.g., Complaint at 7, United States v. North Carolina, No. 1:16-cv-00425 (M.D. N.C. May 19, 2016).

 [212]. See Leonard, supra note 210, at 4.

 [213]. See, e.g., Barnes v. City of Cincinnati, 401 F.3d 729, 737 (6th Cir. 2005); Smith v. City of Salem, 378 F.3d 566, 571–73 (6th Cir. 2004).

 [214]. See Leonard, supra note 210, at 4–5.

 [215]. Oncale v. Sundowner Offshore Servs., 523 U.S. 75, 81–82 (1997). See also Leonard, supra note 210, at 4–5.

 [216]. Oncale, 523 U.S. at 79–80.

 [217]. See Leonard, supra note 210, at 4–5.

 [218]. Complaint, supra note 211, at 7.

 [219]. Id.

 [220]. Id. at 7–9.

 [221]. Id. at 4, 6.

 [222]. Id. at 9.

 [223]. See id.

 [224]. See, e.g., Jody L. Herman, Gendered Restrooms and Minority Stress: The Public Regulation of Gender and Its Impact on Transgender People’s Lives, 19 J. Pub. Mgmt. & Soc. Pol’y 65, 71–78 (2013).

 [225]. Brady, supra note 24.

 [226]. Sexual Assault and the LGBTQ Community, Human Rights Campaign, http://www.hrc.org/resources/sexual-assault-and-the-lgbt-community (last visited May 15, 2018).

 [227]. Jennifer Litton Tidd, Segregated Bathrooms Will Increase Violence Against Women, LGBTQ Nation (May 14, 2016), http://www.lgbtqnation.com/2016/05/segregated-bathroom-laws-will-increase-violence-trans-people.

 [228]. Zach Ford, STUDY: Transgender People Experience Discrimination Trying to Use Bathrooms, Think Progress (June 26, 2013, 1:06 PM), https://thinkprogress.org/study-transgender-people-experience-discrimination-trying-to-use-bathrooms-34232263e6b3.

 [229]. See generally Herman, supra note 224; Ford, supra note 228.

 [230]. Shoshana Goldberg & Andrew Reynolds, The North Carolina Bathroom Bill Could Trigger a Health Crisis Among Transgender Youth, Research Shows, Wash. Post: Monkey Cage (Apr. 18, 2016), https://wapo.st/1S5q0px?tid=ss_tw-bottom&utm_term=.66bad834133f.

 [231]. Complaint, supra note 211, at 9–10.

 [232]. Goldberg & Reynolds, supra note 230.

 [233]. Ford, supra note 228.

 [234]. How A Poison Pill Worded As “Sex” Gave Birth to Transgender Rights, NPR: Politics (May 15, 2016, 7:36 AM), https://www.npr.org/2016/05/15/478075804/how-a-poison-pill-worded-as-sex-gave-birth-to-transgender-rights.

 [235]. Mark Joseph Stern, How a 1964 Civil Rights Law Makes North Carolina’s Bathroom Bill Illegal, Slate: Outward (May 18, 2016, 10:14 AM), http://www.slate.com/blogs/outward/2016/05/18
/sex_discrimination_is_trans_discrimination_gilliam_thomas_explains.html. See generally Gillian Thomas, Because of Sex (2016) (discussing the inception of protection against sex discrimination in Title VII).

 [236]. See generally Thomas, supra note 235.

 [237]. Ulane v. E. Airlines, Inc., 742 F.2d 1081, 1084, 1086 (7th Cir. 1984).

 [238]. See, e.g., Ford, supra note 229.

 [239]. See Elizabeth Bartholet, Proof of Discriminatory Intent Under Title VII: United States Postal Service Board of Governors v. Aikens, 70 Calif. L. Rev. 1201, 1202–03 (1982).

 [240]. See Brown v. Bd. of Educ., 347 U.S. 483, 495 (1954); Brief for NAACP Legal Defense and Educational Fund, Inc. and the Asian American Legal Defense and Education Fund as Amici Curiae in Support of Respondent, Gloucester Cty. Sch. Bd. v. G.G., 137 S. Ct. 1239 (2017) (No. 16-273).

 [241]. See generally Ann P. Haas, Philip L. Rodgers & Jody L. Herman, Williams Inst., Suicide Attempts Among Transgender and Gender Non-Conforming Adults (2014), https://williamsinstitute.law.ucla.edu/wp-content/uploads/AFSP-Williams-Suicide-Report-Final.pdf.

 [242]. See Questionable Questions About Transgender Identity, Nat’l Ctr. for Transgender Equality (Sept. 2, 2016), https://transequality.org/issues/resources/questionable-questions-about-transgender-identity.

 [243]. See Vincent J. Samar, The Right to Privacy and the Right to Use the Bathroom Consistent with One’s Gender Identity, 24 Duke J. Gender L. & Pol’y 33, 55 (2016).

 

The Jury and Empire: The Insular Cases and the Anti-Jury Movement in the Gilded Age and Progressive Era – Article by Andrew Kent

From Volume 91, Number 3 (March 2018)
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The Jury and Empire:
The Insular Cases and the Anti-Jury Movement in the Gilded Age and Progressive Era

Andrew Kent[*]

This Article argues that there was an important causal link, to date unrecognized, between the widespread dissatisfaction with the jury in the United States during the Gilded Age and Progressive era among many elite lawyers and judges and choices by U.S. policymakers and jurists about colonial governance in Puerto Rico and the Philippines. The story starts with the Insular Cases—landmark Supreme Court decisions from the early twentieth century holding that jury rights and some other constitutional guarantees did not apply in Puerto Rico and the Philippines until and unless Congress had taken decisive action to “incorporate” the territories into the union, which it never did. The conventional wisdom among scholars is that the Supreme Court in these decisions shamefully ratified the U.S. government’s discrimination and domination over the peoples of newly-acquired colonies. Racism and cultural chauvinism are blamed as primary causal factors.

The Article shows that Congress, the executive, the courts, and local legislatures in the Philippines and Puerto Rico granted almost every single right contained in the Constitution to the territorial inhabitants, with the exception of the jury. While racism was present and causally important, it is also true that U.S. governance in the territories was not a project of wholesale discrimination. Motivations, goals, and outcomes were complex. Protection of rights of local inhabitants was a key concern of U.S. policymakers. But the jury was considered a unique case, different than other rights.

To understand why the jury was thought uniquely unsuited for the new U.S. colonies, this Article fills out an under-appreciated history of the jury in the mainland United States during the Gilded Age and Progressive Era. Many histories of the jury skip from the adulation of the institution at the Founding to the Warren and Burger Courts’ decisions over 150 years later that racial and gender discrimination in jury service were unconstitutional and that the criminal petit jury was a fundamental right. But the late nineteenth and early twentieth centuries saw severe criticism of the jury by elite lawyers, the newly-created bar associations in big cities, the reformist press, and progressive movement leaders. Many states cut back on jury rights at the time. And the Supreme Court then held that states should not be forced to “straight jacket” themselves, in the Court’s words, to the common law procedure of old England that was found in the Bill of Rights, but should be free to experiment with more efficient criminal and civil procedure. Leaders of the anti-jury movement in the United States were also leading policymakers for colonial issues in Puerto Rico and the Philippines, notably William Howard Taft. Many of the same arguments against the jury were made in both contexts. Linking the anti-jury movement to the legal and political decision-making about colonial governance of the new territories helps enrich our understanding of both.

TABLE OF CONTENTS

Introduction

I. Scholarship on the Insular Cases

II. Disenchantment with the Jury and Other
“Non-Progressive, Delay-Producing” Legal Procedures

A. The Case for Reform

B. Dissatisfaction with the Jury Trial in a “Quick and Active Age”

C. Jury Reform at the State Level

D. Resistance to Jury Reform

III. Jury Rights in Supreme Court Case Law from the Mainland

IV. The Jury and Other Individual Rights in the Philippines

A. The Period of Military-Executive Government

B. Decision-Making About the Jury in the Philippines

C. Congress’s 1902 Organic Act

D. The Mankichi and Dorr Cases: Jury Is Not Constitutionally Required in Unincorporated Territory

E. Subsequent Debate in the Philippines About the Jury

V. The Jury and Other Individual Rights in
Puerto Rico

A. The Period of U.S. Army Rule

B. Congressional and Insular Legislation

1. The Foraker Act for Puerto Rico

2. The Puerto Rico Legislative Assembly

C. Experience with Jury Trials in Puerto Rico During the Era of the Insular Cases

D. Muratti, Tapia, and Balzac: The Supreme Court Reiterates that the Jury Is Not Constitutionally Required

Conclusion

APPENDIX

 

Introduction

As a result of the 1898 war against Spain, the United States annexed the Spanish colonies of the Philippines, Puerto Rico, and Guam and temporarily occupied Cuba.[1] Independent of the war, in 1898 the United States also annexed the nation of Hawaii.[2] According to Supreme Court historian Charles Warren, “by far the most important fact in the Court’s history,[3] during the ensuing decade was a series of decisions known colloquially as the Insular Cases. Starting in 1901, the Insular Cases addressed the legal status of new overseas possessions and their peoples under the U.S. Constitution and statutes.

The primary Insular Cases asked whether constitutional and statutory provisions concerning tariffs and the use of juries in criminal cases were applicable to newly-annexed islands.[4] These questions were the occasion for the Supreme Court’s involvement in a contentious national debate about whether the Constitution allowed the United States to have an empire—that is, whether the Constitution allowed the United States to annex extra-continental territory unlikely ever to be admitted to statehood and to govern with fewer constitutional limitations than on the mainland.[5] The metaphor used to describe the debate was whether “the Constitution followed the flag” in the Philippines and Puerto Rico—the two territories on which the debate centered.[6] For several years, no legal issue received greater attention in Congress, the Executive Branch, and the Supreme Court.

By 1905, a majority of the Court agreed upon a framework for deciding whether the Constitution followed the flag: the doctrine of territorial incorporation.[7] Under this doctrine, the Court held that some constitutional guarantees did not automatically follow the flag—specifically those requiring tariff uniformity and the use of petit and grand juries.[8] Theseand perhaps otherother constitutional provisions would be applicable only if the territory had not only been annexed but had also been further “incorporated” into the United States—that is, deemed an integral and permanent part of the union by Congress, even if not yet granted statehood.[9] The Court examined the treaty ceding the Spanish territories and subsequent congressional actions to determine that Puerto Rico and the Philippines were “unincorporated.”[10] They “belonged to” but were not fully “part of” the United States.[11] Therefore, their inhabitants were held to be entitled to fewer constitutional rights and guarantees than others living in the United States proper and in its incorporated territories, such as Oklahoma, Hawaii, and Alaska.

The key decisions about constitutional jury rights came in the Hawaii v. Mankichi case of 1903 concerning Hawaii (prior to its incorporation into the union), Dorr v. United States in 1904 from the Philippines (never incorporated and soon declared by the President and Congress to be destined for ultimate independence), Rassmussen v. United States in 1905 from Alaska (after its incorporation into the union), and Balzac v. Porto Rico in 1922 from Puerto Rico (reaffirming that Puerto Rico was not incorporated and, hence, constitutional jury rights did not apply, even after Congress granted citizenship in 1917).[12]

In the initial decisions settling upon the incorporation doctrine, the Court did not clearly decide the status of other constitutional rights in unincorporated territories besides jury guarantees and tariff uniformity. For instance, could Congress abridge the freedom of speech or take property for public purposes without paying compensation in Puerto Rico and the Philippines? In the early Insular Cases, the Court indicated that trial by jury and indictment by grand jury were “not fundamental”[13] and, in various dicta, opined that certain “fundamental” constitutional rights would be applicable everywhere that U.S. sovereignty reigned.[14] But the Court, with one exception, did not specifically name these fundamental, always-applicable rights in any actual holding during the crucial years American colonial policy was being established.[15]

Starting immediately after these decisions were first issued in 1901, and continuing to the present, the Insular Cases and the doctrine of territorial incorporation have been subjected to withering attack. The rights of residents of all U.S. territories and commonwealths—Puerto Rico, Guam, American Samoa, the U.S. Virgin Islands, and the Northern Marianas—continue to be framed by constitutional doctrines of the 18991905 period, holding that only fundamental constitutional rights apply.[16] The institutional and legal trajectory of the independent Philippine state—which has been troubled, to say the least—was set by U.S. rule and shaped decisively by the Insular Cases. The Insular Cases have also been used to decide the legal status of persons held outside U.S. sovereignty but under U.S. control.[17] Criticism of the Insular Cases has only gathered force over time because constitutional rules that treat some population groups worse than others, especially when there are racial or ethnic differences between minority and majority, have been ill-favored at least since Brown v. Board of Education[18] and the civil rights revolution.[19]

Most contemporary scholarship about the Insular Cases and the doctrine of territorial incorporation sees them as examples of discrimination, domination, and denial of rights. Scholarship charges that the Supreme Court allowed the U.S. government to “totally disregard the Constitution in governing the newly acquired territory.”[20] And most critics identify racism and cultural chauvinism as the dominant factors driving the Court’s and the political branches’ supposed decisions to deny individual rights and disregard the Constitution in the unincorporated territories.[21]

Although I have joined the many commentators in finding that aspects of the Justices’ reasoning in the Insular Cases was “frankly racist,”[22] and although the same can be said for the statements of members of Congress and the executive branch involved in insular policy, this Article argues, contrary to the consensus in scholarship, that the explanatory power of racism and cultural chauvinism is somewhat limited on the important issue of which individual rights were accorded to the inhabitants of unincorporated territories. As discussed below, during the period 19001917, the residents of Puerto Rico and the Philippines were granted by statute every individual right found in the U.S. Constitution, with the exception of the Second Amendment right to bear arms, the Third Amendment prohibition on quartering soldiers in private homes in peacetime, and, in the Philippines, the rights to a jury trial and grand jury indictment.[23] A story which focuses only on a presumed intent by U.S. decision makers to dominate, discriminate, and deny rights to the people of Puerto Rico and the Philippines needs revision. If we are not to miss the forest for the trees, it is notable how many rights were granted.

Putting aside constitutional tariff rules, the irrelevant Third Amendment, and the Second Amendment, which almost no one discussed,[24] it turns out that jury guarantees were the only rights which U.S. policymakers in Washington actually wanted to withhold from residents of unincorporated territories. After early endorsements of Congress and the executive branch in their view that the Constitution did not require access to a jury[25] or compliance with the Export and Uniformity Clauses regarding tariffs, the Supreme Court never again held that a single other constitutional right was inapplicable.[26]

Since the jury trial is the right that U.S. policymakers in the three branches actively worked to withhold, a search for causal explanations for U.S. governance and policy toward the Philippines and Puerto Rico on the issues of individual rights and legal procedure must focus on the jury.

Racism and cultural chauvinism of U.S. policymakers undoubtedly played a role in deciding that the jury was not necessary or appropriate in Puerto Rico and especially the Philippines. The Supreme Court suggested that the Philippines contained many “uncivilized” inhabitants, in the course of holding that the Constitution did not require the use of a criminal petit jury in a felony case there.[27] William Howard Taft, a key policymaker—first in the executive branch and then on the Supreme Court—made public arguments against introduction of the jury trial in the Philippines that sound culturally chauvinistic to modern ears. He wrote, for example, that 90% of Filipinos “or more are densely ignorant, superstitious, and subject to imposition of all sorts.”[28] Echoing the racialized social Darwinism of the day, Puerto Ricans, and particularly Filipinos, were often derided by U.S. policymakers as mere children in the art of self-government, who would need extensive tutoring before they were fit to participate fully in Anglo-Saxon institutions.[29]

But the wider context in which the decisions to restrict the use of juries were reached shows a very different set of ideologies, goals, and motivations were also—not instead, but also—at work. Merits-based views about the proper working of the justice system, the specific defects of juries, the desire to allow experimentation with legal procedure, and the need for law to be in harmony with the habits and traditions of the people were also significant factors in setting U.S. policy toward juries in Puerto Rico and the Philippines.

This Article takes a new view of the Insular Cases, by contextualizing the decision to withhold jury rights in the colonial dependencies by reference to a contemporaneous movement by elite lawyers in the metropole—the mainland United States—to restrict the use of the jury, to empower courts, to simplify procedure, and to streamline litigation. This broader, domestic context for colonial policy is found by examining the activities of elite lawyers and judges in the courts and in their new bar associations that emerged in the latter part of the nineteenth century, the upper-class reform movements in cities like New York, and the work of progressive legal academics and political scientists concerned with promoting efficient, non-corrupt government. This context is also seen in Supreme Court case law holding that the new Fourteenth Amendment should not shackle states to ancient common law procedure, like the jury rules in the Bill of Rights, but should be interpreted to allow procedure to be flexibly adapted to the needs of the times. Histories of the jury in America tend to skip from the Founding to modern times, neglecting the period of intellectual ferment and institutional reform that this Article covers.

This Article proceeds in five main parts. Part I briefly reviews the current state of scholarship on the Insular Cases. Part II shows how many elite lawyers had, in the last decades of the nineteenth century and first decade of the twentieth, become thoroughly disenchanted with the jury. This was a stunning reversal. At the Founding, the jury had been universally lauded.[30] It was one of the few individual rights to be protected in the original Constitution (in Article III). And three provisions of the Bill of Rights protected the jury. Blackstone’s description of the jury as the palladium—the safeguard—of liberty[31] was frequently intoned.[32] Tocqueville’s famous description of the jury in Democracy in America (1835) as an essential educational tool for American democratic self-government was widely believed and repeated.[33]

But by the later part of the nineteenth century, the grand jury and the petit jury in both civil and criminal cases were heavily criticized. Many states were reforming their judicial procedure to eliminate some jury rights. This was part of a larger reform movement focusing on delay and excessive procedural technicality that was perceived to be bogging down both the civil and criminal justice systems. Lawyers who were central to U.S. policy in the new insular possessions—men like Taft and Elihu Root—were at the same time prominent critics of mainland legal procedure, including the jury.

Part III shows how the U.S. Supreme Court’s jurisprudence under the new Fourteenth Amendment adopted much of the perspective of anti-jury reformers. The Court refused to interpret the Constitution to “straightjacket”[34] the states with the common law procedural rights like the jury and grand jury that the U.S. Constitution mandated for the federal government. The Court praised the spirit of progressive reform of procedure that it saw in the states and even predicted that if a territory with a civil law tradition came into the union, it would make sense to allow that territory to keep their time-worn legal institutions and procedures intact. This latter point reflected the widespread view of elite lawyers at the time that law worked best, and was most legitimate, when it remained consistent with the habits, customs, and views of the people.

Part IV traces the beginnings of U.S. rule in the Philippines, the reform of legal procedure by the U.S. military and U.S. executive, and the debates about whether the Constitution followed the flag there. It shows that the executive branch and Congress extended by executive order and then statute essentially all individual rights that were contained in the U.S. Constitution except jury rights. And it shows how leading administration policymakers, Taft and Root, made the same arguments against the use of the jury for Filipinos as were made in the mainland at the same time.

Part V turns to Puerto Rico, which took a very different path than the Philippines. Washington gave local decision makers much greater leeway in Puerto Rico, and the local legislature and courts took the lead in crafting protections for individual rights. As in the Philippines, essentially every right enjoyed in the mainland as a limit on the federal government was, by statute or judicial interpretation, granted to the people of Puerto Rico. But unlike in the Philippines, the jury was used too but only to try criminal cases. Even when given full sway to legislate rights for themselves in more recent years, Puerto Ricans have not constitutionalized the civil or grand jury.

* * *

Before turning to the argument, it makes sense to pause briefly to introduce two main characters who played significant roles in U.S. colonial policy and in the procedural reform movement in the mainland.

Before he became president of the United States (19091913) and chief justice of the United States (192130), William Howard Taft already had extensive government service. He was appointed at age twenty-nine to the Ohio superior court bench by Governor Joseph Foraker, later an influential U.S. Senator on colonial policy.[35] When Taft was only thirty-two, Foraker pushed President Harrison to put him on the U.S. Supreme Court. Harrison opted to make Taft the Solicitor General of the United States. Harrison soon moved Taft to a judgeship on the Sixth Circuit, where he stayed until another Ohio politician, President McKinley, asked Taft in January 1900 to lead a commission to establish civil government in the Philippines, then in insurrection against the United States.

Taft remained in Washington through the spring of 1900, when the administration and Congress were debating the form of government and constitutional status of Puerto Rico. Taft then left for the Philippines, and managed his commission so satisfactorily that he was appointed the first civil governor of the Philippines in summer 1901, when the insurrection had been largely quelled. Taft held the post until the end of 1903, and then came back to Washington to be the Secretary of War—the office that President McKinley had made the overseer of all U.S. colonial policy. Taft had been in Washington the previous year, to testify and lobby Congress, and speak to the press and public, about the form of civil government to create for the Philippines. Taft was a self-described progressive conservative.[36] As Chief Justice, Taft wrote the Balzac opinion in 1922, solidifying the territorial incorporation doctrine into U.S. law and the rule that constitutional jury rights were not protected in unincorporated territories.

Elihu Root was, like Taft, a progressive conservative and one of the most respected lawyers in the nation. Root began his career as a private lawyer in New York City after the Civil War, amassing a lucrative practice of influential clients such as Jay Gould, Chester Arthur, and E.H. Harriman.[37] When he became president, Arthur appointed Root the U.S. Attorney for the Southern District of New York (188385). Root resumed his private law practice and became a civic leader, involved in leadership roles in the Union League Club, New York City-based reform organizations, and bar associations, relatively new organizations which elite lawyers had begun forming to press their views on regulation of the legal profession and the judiciary. Root’s reform work was of the good government variety, focused on reducing corruption and improving state and local government services like schools and police. In summer 1899, President McKinley overrode Root’s objection that he knew “nothing about war . . . nothing about the military” to make him Secretary of War, telling Root that now that the war was over and problems of peace were most pressing, he needed “a lawyer to direct the government of these Spanish islands.”[38] Root and Taft quickly became the McKinley administration’s leaders on colonial policy. After turning over the Secretary of War post to Taft in 1904, Root became President Roosevelt’s Secretary of State. He later served as U.S. Senator from New York.

I.  Scholarship on the Insular Cases

For several decades, scholarship about the Insular Cases has been uniformly critical. Proceeding normatively, many commentators, myself included, have argued that the best understanding of U.S. republicanism and our constitutional tradition is that all persons within the sovereign limits of the United States should have equal rights and equal legal status.[39]

Descriptive or interpretive scholarship has also been highly critical. Many critics charge the Court in the Insular Cases with inventing a “novel”[40] constitutional “innovation,”[41] “a hitherto unexisting difference between ‘incorporated’ and ‘unincorporated’ territories,”[42] that was self-consciously crafted to facilitate imperial expansion without making the peoples of the new possessions U.S. citizens.[43] It is undeniable that the Court wanted to leave it to the political branches to determine whether to make the new insular possessions permanent parts of the union and their people citizens. The Court spoke with candor about the desire to facilitate experimentation with imperial expansion.[44] Given strong public support for the McKinley administration, the well-established and frequently exercised power to acquire territory via treaty,[45] and the textuallygranted constitutional powers of Congress over naturalization, governance of territories, and admission of new States[46]—powers understood from the nineteenth century until the present to be plenary in nature—the Court’s decisions to defer to Congress and the executive branch on issues of political status, political rights, and citizenship were perhaps inevitable. But the recent legacy of the Fourteenth Amendment’s repudiation of Dred Scott v. Sandford[47] on the issues of citizenship and equal rights in the United States, seemingly reaffirmed in a 1898 Supreme Court decision that birthright citizenship knew no distinctions of race, ethnicity, or parentage,[48] still led many commentators, both then and now, to hope that the Court would repudiate colonialism and unequal citizenship.[49]

For a variety of reasons, the 1898 decisions of the McKinley administration to accept cession from Spain of Puerto Rico and Guam were not particularly controversial.[50] But substantial segments of the American public strongly opposed annexation of the Philippines—an enormous archipelago of over 3,000 islands, located half-way around the world, with a population of somewhere between seven and ten million people.[51] Racism, xenophobia, and cultural chauvinism were prominent reasons for this opposition.[52] Filipinos were widely portrayed in the American press as dark-skinned, culturally inferior savages.[53] George Vest, a Democratic Senator from Missouri and leading anti-expansionist, wrote just prior to the vote on ratifying the annexation treaty that “[t]he idea of conferring American citizenship upon the half-civilized, piratical, muck-running inhabitants of [the Philippines] . . . and creating a State of the Union from such materials, is . . . absurd and indefensible.”[54] On the other hand, some proponents of annexation viewed rule over the Philippines in racial terms; these proponents viewed it as an opportunity for “English-speaking and Teutonic peoples” to become “the master organizers of the world”[55] and uplift supposedly benighted lesser races.

Public and congressional resistance to acquiring the Philippines only increased when the Filipino insurgents, who had earlier fought Spain, attacked U.S. forces at Manila in February 1899, just as the U.S. Senate was set to vote on the treaty of peace and annexation.[56] The treaty was nevertheless approved by the Senate, but the Senate passed a resolution stating future U.S. policy toward the Philippines: no “incorporation” of Filipinos into the American body politic and no “permanent annex[ation]” of the islands.[57]

The Philippines was quickly considered a major headache by U.S. policymakers because of a bloody rebellion that began in early 1899; it was also generally assumed to be destined for ultimate independence due to the perceived impossibility of ever assimilating it.[58] As litigation of the first Insular Cases proceeded through the lower federal courts, the Democratic Party platform of 1900 announced that “[t]he Filipinos cannot be citizens without endangering our civilization.”[59] Christina Ponsa-Kraus has shown that anxiety that the United States remain constitutionally free to grant independence to the Philippines and its “alien” population[60] was a crucial driver of U.S. colonial policy, including on the Supreme Court; many, including key Supreme Court Justices like Edward Douglass White, were concerned that it would be impossible to do this if the Constitution were fully extended to the Philippines.[61]

Thus, I have joined the many commentators who find that aspects of the Justices’ reasoning in the Insular Cases were racist and that racism and cultural chauvinism drove the actions of important political leaders, especially among anti-expansionists in the Democratic Party.[62] Racial considerations undoubtedly influenced U.S. policy-making both during the debate about whether to annex the Philippines and also during the constitutional litigation that resulted in the doctrine of territorial incorporation. This was the height of the Jim Crow-Plessy era [63] on the Supreme Court and the country at large. Racism deeply permeated American life and thought.

I concur with the current scholarly consensus on this score. But when the discussion turns to questions of individual rights and of how the territories would actually be governed, the received wisdom in much of the current scholarship needs revision. The dominant theme is that U.S. policymakers made conscious choices to purposefully treat residents of the new insular possessions worse than residents of the mainland.

Many commentators, accepting the framing that U.S. rule was one of domination and denial of rights, have asserted that the Insular Cases broke with a “settled understanding” of extending all constitutional rights to residents of U.S. territories.[64] But more recent revisionist scholarship has noted first that, even within the States of the Union, not all constitutional provisions were everywhere applicablefor instance, the Bill of Rights had not been incorporated as a limit on state governments at the time of the Insular Cases and Article III guarantees of judicial independence never applied in territorial courts.[65] Second, scholars have also noted that the Supreme Court’s pre-1901 case law about individual constitutional rights in the mainland territories actually vacillated among different propositions,[66] with only the Insular Cases themselves settling the matter in favor of the view that the full Constitution (to the extent applicable), including jury rights, protected U.S. territories only once they were incorporated by Congress.[67]

The doctrine that residents of the new unincorporated territories have fewer individual constitutional rights drives much of the criticism of the Insular Cases and the political decisions underlying them. In the Insular Cases, say many critics, the Court allowed the U.S. government to “totally disregard the Constitution in governing the newly acquired territory,”[68] and “govern . . . without extending constitutional rights to the residents.”[69] This is overstated; as noted in the Introduction, the Court held that the Due Process Clause and other fundamental rights apply in Puerto Rico and the Philippines.[70] A related criticism is that the Court held in the Insular Cases that “the Constitution nominally applied, albeit in skeletal form” and the incorporated territories were “largely in an extraconstitutional zone.”[71] The end result is that the people of unincorporated territories are understood to have had “limited rights”[72] and were “unprotected by many fundamental constitutional guarantees.”[73] The Court, Congress, and the executive left the unincorporated territories as “coloni[es] . . . totally subordinated and subject to the mercy of Congress.”[74] This too is overstated and in need of revision. First by executive order, and then by statute and judicial decisions, residents of the two territories came to possess almost all of the same rights as the U.S. Constitution provided, with the exception of the Second and Third Amendments and the partial exception of jury rights.[75]

Commentators identify racism and cultural chauvinism as the dominant factors driving the Court’s and the political branches’ decisions to subordinate the residents of the unincorporated territories, to give them a second-class status, and to deny them constitutional rights.[76] The Oxford Companion to the Supreme Court, for example, states that the majority position in the Insular Cases was “largely racially motivated.”[77] Akhil Amar has quipped that the Court “refused, in a series of decisions known as the Insular Cases, to extend the benefit of jury trials to brown-skinned folk in various island territories.”[78] Judge Juan Torruella has charged that “obvious racial biases” drove the Court in deciding Balzac on the lack of constitutional jury rights in Puerto Rico and other unincorporated territories.[79] Other commentators on the jury decisions agree.[80]

Framing the Insular Cases solely in terms of discrimination, subordination, and racism, as so much contemporary scholarship does, is not inaccurate, but it is incomplete. Other important variables, motivations, and contexts are ignored when this frame is the sole lens through which the cases and the government’s decision-making is viewed. The remainder of this Article supplies additional context—an additional lens through which to understand judicial and political policymaking about individual rights in Puerto Rico and the Philippines.

II.  Disenchantment with the Jury and Other “Non-Progressive, Delay-Producing” Legal Procedures

Crucial context for the decision to specifically withhold the jury—among all of the other rights the common law and U.S. Constitution provided—from incorporated insular territories can be found in a reform movement in the United States. Several decades in the making, this movement, led by elite lawyers and civic reformers, sought to reduce court delays, unjustified acquittals of criminals, and unfair civil verdicts against corporations, by reforming the system of grand and petit juries.

There were dramatic changes made in legal procedure, both civil and criminal, in the latter part of the nineteenth and early twentieth centuries. It was an era, as the Supreme Court put it, in which many states were experimenting to find “simpler and more expeditious forms of administering justice,” [81] more in tune with the needs of a “quick and active age.”[82]

A.  The Case for Reform

In a widely discussed address to the 1905 graduating class at Yale Law School, Taft excoriated “the administration of the criminal law in all the states in the Union” as “a disgrace to our civilization.”[83] Then Secretary of War under President Theodore Roosevelt, Taft oversaw U.S. policy and governance in the new insular possessions. He had replaced Elihu Root, who stayed in the cabinet as Secretary of State.

By the turn of the twentieth century, there was a widespread perception among many politicians, academics, and elite lawyers—including Taft and Root—that crime rates were rising and that the criminal justice system was skewed too far in favor of protecting individual rights, thus allowing the guilty to go free.[84] In his famous “disgrace to our civilization” speech,[85] Taft told his Yale audience that there was no longer “certainty of punishment” for criminals.[86] Protections for defendants have been extended and elaborated, posing “greater obstacles in the conviction of the guilty.”[87] Root agreed,[88] as did Oliver Wendell Holmes who wrote, in a dissenting opinion for the Supreme Court joined by Justices White and McKenna, that “[a]t the present time in this country there is more danger that criminals will escape justice than that they will be subjected to tyranny.”[89] Justices Holmes, White, and McKenna voted with the majorities in the Insular Cases, Mankichi, and Dorr, about the jury.

New York City lawyer Everett Wheeler, a civic reformer and one of the founders of the American Bar Association (“ABA”), argued that the severity of punishments at common law created criminal procedure rules that were too protective of defendants and let “myriads of criminals . . . escape just punishment;” instead, the principal object of the system should be to “protect the innocent members of society” from criminals.[90] James Bryce, a well-informed observer of U.S. government and society,found that American “criminal justice . . . is accused of being slow, uncertain, and unduly lenient because of the “soft-heartedness of juries” and “cumbrous and highly technical procedure.”[91] Alfred Conkling Coxe, a federal judge in New York, complained that “notorious criminals” frequently escaped punishment because of legal technicalities and multiple layers of review.[92] Harper’s Weekly thought that “[t]he whole procedure of criminal law seem[ed] to be devised in order to give the defendant every opportunity to evade justice,” and that there were many “abuses of the criminal law in the interest of criminals.”[93] Roscoe Pound criticized criminal procedure for “look[ing] chiefly at individual rights” instead of “the rights of society,” and worried that “society is not protected, crimes are not punished, and lawlessness is general.”[94] Supreme Court Justice David Brewer was so concerned with “tardy justice” that failed to “secure protection to the public” from criminals that he used the occasion of his address to the ABA annual convention in 1895 to call for the elimination of appeals in criminal cases.[95] To his Yale audience, Taft unfavorably compared the common law’s preference for “the utmost liberty of the individual” with the Roman-based civil law system’s “greater anxiety that the state should be protected against crime.”[96]

American critics saw severe problems with the course of justice not just on the criminal side of the docket, but in civil cases as well. The civil justice system was routinely said to be filled with undue delay and expense as well as frequent miscarriages of justice. The ABA formed a blue ribbon “Special Committee to Suggest Remedies and Formulate Proposed Laws to Prevent Delay and Unnecessary Cost in Litigation,” staffed by Roscoe Pound, Everett Wheeler, and other prominent academics and elite lawyers.[97] Articles on the causes and consequences of “Law’s Delay”—a Shakespearean phrase that had become proverbial[98]—filled the periodicals read by elite lawyers and academics, as well as general circulation newspapers, focusing on both civil and criminal law.[99] New York State, to pick one example, convened a special “Commission on the Law’s Delay”[100] chaired by Wheeler Peckham, a Wall Street lawyer, nominee to the Supreme Court, special prosecutor against Tammany Hall, and brother of a Supreme Court Justice.[101] Pound gave a much-noted speech to the ABA in 1905 severely criticizing many aspects of the civil litigation system, notably procedural technicality, complexity, and delay.[102]

There was widespread agreement—among elite, conservative reformers like Taft, Simeon Baldwin (Yale law professor, president of the ABA, and future governor of Connecticut), and Root, as well as more left-leaning progressives in the academy and professions—that both the criminal and civil justice systems were burdened by what Pound called a “hypertrophy of procedure.”[103] According to Pound, procedure was “cumbersome, dilatory, [and] needlessly technical [in] character as a whole,” with an “excessive number of safeguards, loopholes, and mitigating agencies.”[104]

Reforms took many shapes. A frequent complaint was that appellate courts too often reversed in jury trial cases on technical issues, without regard to whether the ultimate result was substantively correct.[105] This issue affected both the civil and criminal dockets and ultimately prompted the enactment of harmless-error statutes at the federal level and in a number of states, prohibiting appellate reversal unless substantial rights were affected or a miscarriage of justice had occurred.[106] As a remedy for delays and to achieve various social goals, municipal court systems in cities like Chicago were substantially redesigned and simplified by progressives.[107] Arbitration started to be used more frequently by members of trade associations to resolve disputes, and reformers began to recommend statutes to insulate arbitral judgments from collateral review by courts.[108] Intermediate appellate courts were added by a number of states to reduce docket pressure on state high courts.[109] The equity side of trial courts’ jurisdiction—where the judge sat without a jury—became more prominent, and equitable remedies and procedures were used more aggressively.[110]

B.  Dissatisfaction with the Jury Trial in a “Quick and Active Age”

The jury was excoriated by many elite lawyers and reformers as the cause of delay, expense, injustice, and uncertainty.[111] Justice Brewer wrote in 1902:

[t]oday [the jury] has become the object of attack and criticism. By not a few it is thought to have outlived its usefulness; they believe that it is the part of wisdom to abolish it entirely and to substitute some other mode of trial,—more, as alleged, in harmony with the spirit of the age.[112]

Judge Coxe observed that the “defects of the jury system” are “so serious that many thoughtful men have advocated its abolition altogether.”[113] A Baton Rouge attorney told the ABA that the failure of juries to convict the obviously guilty has created “a system of jury-made lawlessness.”[114] According to a Boston attorney, “[t]hat there are grave defects in the present [jury] system is undeniable, and there are many who believe that, because of these defects, the system itself, at least in criminal cases, is worthless.”[115] “The jury system is destroying the law,” opined a prominent Texas attorney.[116]

Criticism of the jury became pronounced around the time of the Civil War and increased as the nineteenth century went on.[117] The roots of this criticism went deep. Starting in the early nineteenth century, judges, lawyers, and legislators, taking a newly-professionalized view of the legal system, had begun to tentatively cabin some of the jury’s power. The view that juries had the right to decide questions of both law and fact began to be challenged, especially on the civil side.[118] Commercial lawyers, abetted by judges interested in stability and predictability in the law, began to use procedural devices in civil cases—such as the special case, which permitted a judge to decide the case based on a stipulated set of facts—to take some decision-making away from the jury.[119] Judges started reversing civil verdicts they found contrary to the weight of the evidence, a procedure “hardly known in American law” before the end of the eighteenth century.[120] These were reforms driven by elites. But there were also jury reforms that proceeded from other impulses and parts of the population. During the heyday of Jacksonian democracy, there were debates in a number of states about getting rid of the grand jury, with “critics charging that secret proceedings in criminal matters were contrary to the spirit of the new nation’s democratic institutions.”[121]

In the decades after the Civil War, anti-jury sentiment became more widespread. Dennis Hale has described how the jury was conceived in the Founding and Antebellum Periods as an elite institution staffed by propertied men of above-average intellect, character, and judgment; but as the nineteenth century progressed and universal manhood suffrage and universal jury service (for white males) became the norm, many elites lost respect for the institution.[122]

In an era of high immigration from southern and eastern Europe, intense industrialization and urbanization, economic dislocation and labor strife, populist attacks on big business, corrupt machine politics, and growing popularity of radical left-wing politics in both the prairie and the city,[123] the increasing aversion to the jury from elite lawyers and other members of the genteel and professional classes—often white Anglo-American Protestants—coincided with their more general concerns about the excesses of democracy, the untrustworthy masses, and, in William Wiecek’s words, “[f]ear of disorder and social disintegration.”[124]

It became widely thought that the “better” men in the community did not serve on juries[125] and that jurors were “occasionally obstinate or corrupt,” “not always competent to fully understand or fairly dispose of the true issues raised and facts presented,” and too prone to “ignorance, partiality, or prejudice.”[126] The Nation opined that juries were frequently “twelve extremely illiterate or half-witted men,” and “nobody but the criminals and the ‘jury fixers’ are interested in the continuance of the present state of things.”[127] According to a prominent Indiana attorney, many think that “the jury, as at present constituted, is totally unfit for the work they are to perform; that they are men untrained in the law, for the most part unaccustomed to weighing and balancing evidence and judging of the truthfulness of witnesses.”[128] Even the U.S. Supreme Court criticized “ignorance . . . passion or prejudice” that sometimes influenced jury verdicts.[129]

Elite American lawyers and progressive reformers routinely criticized American jurors for, in the words of George Alger of the New York Bar, “lack of respect for [the] law as law.”[130] As Pound described American juries at the turn of the twentieth century, they too often had “pioneer or frontier” attitudes toward criminal justice and were thus “predisposed to release the accused.”[131] Taft told the Civic Forum in New York City in 1908 that “[a]nother cause of the inefficiency in the administration of the criminal law [in the United States] is the difficulty of securing jurors properly sensible of the duty which they are summoned to perform.”[132]

Changes in the legal profession likely contributed to the jury’s loss of popularity. The leaders of the Bar and the best compensated lawyers had previously been generalists who specialized in trial practice and oratory before judges and juries. But as the nineteenth century advanced, many lawyers, especially the very successful ones, were “actually more men of business, negotiators, managers of corporate enterprises and the like, than lawyers,” as Alfred Russell told the ABA in 1891.[133] As the twentieth century approached, the bar associations in big cities like New York were often led by the new breed of corporate lawyers. And in civil cases, “[b]usiness and [its] lawyers were convinced that juries were incorrigibly plaintiff-minded.”[134] Oliver Wendell Holmes, then a justice on the Supreme Judicial Court of Massachusetts, concurred.[135] The new breed of corporation lawyer was more likely to fear the jury—for bias against corporate clients, for uncertainty and unpredictability, and for delay—than venerate it and make his living pleasing it, as earlier Bar leaders had.[136]

Criticism of the jury often coincided with support for good government reform causes.[137] Organs of liberal, reformist thought like The Nation and Harper’s Weekly were frequent jury critics. Politicization and corruption in the administration of justice were a frequent theme of many anti-jury voices. Many leaders of bar associations, who were often anti-jury, were also “active in urban reform movements and in Mugwump state and national movements.”[138] Preferring the expert judge over the popular jury was also in keeping with the respect for specialization and expertise held by the burgeoning progressive movement.[139]

Also driving concern about the jury, on the criminal rather than civil side, was the growing concern, noted in Section II.A, about serious crime and the perception that juries frequently acquitted wrongdoers.[140] In addition, courts’ dockets were increasingly crowded in the late nineteenth century.[141] Merit-based concerns about the delays and costs of both the criminal and civil justice systems, noted in Section II.B, seem to have been powerful causal factors driving criticism of the jury.

Juries were also thought to be an anachronism in two senses. First, the historical reason for the jury was said to be the people protecting themselves against corrupt, biased, or tyrannical agents of government—paradigmatically, agents of absolutist kings. Men like Taft and Edson Sunderland—a Michigan professor who would go on to be a principal drafter of the Federal Rules of Civil Procedure—wrote that in a country where judges were either elected by the people or appointed by democratically-elected officials and where government tyranny was not thought to exist, the original justification for the jury no longer obtained.[142] Blackstone had called the jury the palladium—the safeguard—of liberty.[143] But “[i]n the United States, there is no need of this palladium.”[144]

Second, the jury—ancient, slow, inefficient, and costly—was out of tune with the times. As Judge Coxe put it, “[t]rial by petit jury in its present form is wholly unsuited to the needs of a busy and progressive age.”[145] A Chicago lawyer called it “a relic of a by-gone era.”[146] Juries were said to make the justice system more “expensive” and “cumbersome” and the cause of much delay.[147] As a leading Florida lawyer told the ABA, “[m]odern life seeks results and demands that these results shall be quickly attained, in order that its energies may be released to accomplish more results. It likes accuracy, but it is perfectly content that some accuracy may be sacrificed to obtain speed.”[148] Modern life moved, as Justice Brewer put it, with “the hot haste of a Kansas cyclone.”[149] And in such an age, the jury was a “non-progressive, delay-provoking institution.”[150]

Another factor, though certainly of lesser importance than others, may have been a newly positive view of the Roman-derived civil law tradition, which historically had eschewed the jury. For centuries, dating back before Independence, it had been a staple of American rhetoric to assert that the common law was superior to the civil law. There were always dissenters of course. The early nineteenth century Supreme Court Justice Joseph Story, for example, deeply appreciated the civil law.[151] In the latter part of the nineteenth century, this appreciation became more widespread. Paralleling positive comments by Taft and other colonial administrators in the government after 1898—who engaged deeply with the Spanish civil law legal systems in Cuba, the Philippines, and Puerto Rico—the excellence of the civil law was discussed in law reviews and bar magazines.[152] There was often a caveat, however, that civil law—notably Spanish—criminal procedure needed reform to better protect against abuses by government.[153] Somewhat similarly, many lawyers pointed out that judges competently and fairly decided factual questions in cases on equity, admiralty, and probate dockets, suggesting that laypeople had no monopoly on fact-finding ability.[154]

Driven by this great mix of factors, jury reform or abolition was intensely debated at the end of the nineteenth century and beginning of the twentieth. Newspapers began to report frequently on debates about reform or abolition of juries.[155] Law reviews and other elite magazines were filled with articles with titles like “Should Trials by Jury Be Abolished.”[156] Speakers at the ABA and state and local bar associations incessantly debated whether the jury system should stay or go.[157] At the time, bar associations were largely comprised of elite, urban lawyers.[158] Satirical magazines poked fun at juries and jurors.[159] Political scientists wrote papers and held conferences about the jury’s weaknesses. Law reformers like Pound focused on the jury as a major part of the reason for law’s failures.[160] As one law journal put it in the 1890s:

There is probably no question more frequently mooted at present in the realm of legal discussion than that of the reform or abolition of jury trials. . . . [I]t has been as liberally treated by the lay press as by legal journals and lawyers themselves. . . . There is hardly a bar association meeting held nowadays at which the reform or abolition of the jury system is not made the occasion of animated and often heated discussion.[161]

All phases and aspects of the jury system were panned. In addition to general criticism of grand juries and petit juries in civil and criminal cases, the unanimity requirement, for instance, was widely criticized, particularly in civil matters. It was said to produce delays by creating mistrials, gave a veto to one obstinate, “corrupt,” or “stupid” man,[162] and was contrary to the voting rules used in other American institutions.[163] Some supported getting rid of unanimity in criminal as well as civil cases.[164]

C.  Jury Reform at the State Level

The “quick and active age,” as the U.S. Supreme Court called it, was filled with “progressive growth and wise adaptation” of old procedure “to new circumstances and situations.[165] There were great changes made in both in civil and criminal procedure, many focused on the jury.

Coming out of the Founding period, in essentially all states, both civil and criminal juries were constitutionally guaranteed. But starting in the mid-nineteenth century, many states altered their constitutions to allow parties to waive jury trial in civil cases.[166] During the era of the Insular Cases, most states and the federal courts did not allow criminal defendants to waive a jury trial and be tried by the bench.[167]

By the first decade of the twentieth century, about one quarter of U.S. states had abolished grand juries as a means of initiating prosecutions.[168] Sixteen states—the newer western states comprising a majority of them—allowed juries to be fewer than the twelve people required by the common law and the U.S. Constitution (for federal courts).[169] Fourteen states—again, a majority of them being the western ones—had abolished the rule of unanimity for civil jury verdicts.[170] At least three states had abolished it for criminal juries.[171]

Colorado’s 1876 constitution, for instance, did not guarantee a civil jury.[172] Louisiana’s new constitution of 1898 both failed to guarantee a civil jury trial and allowed the legislature to have criminal cases tried by the bench alone if the penalty were something less than death or imprisonment for a term of years at hard labor.[173] Louisiana, which had a system derived from the civil law as result of being a French and Spanish colony, was the home state of U.S. Supreme Court Justice Edward Douglass White, the driving force behind the doctrine of territorial incorporation in the Insular Cases.

Other changes during this era included state and federal courts expanding the power of judges in civil cases to take cases away from juries by directing verdicts.[174] Contempt orders issued to enforce injunctions became a popular way for conservative federal judges to stop labor strikes, in part, because it avoided juries who might sympathize with strikers if criminal or civil actions were brought at law.[175]

D.  Resistance to Jury Reform

As noted in Section II.A, there were calls for judges to preside over trials without the jury in civil cases at common law, including by Taft in his widely-covered 1905 Yale speech.[176] And some reformers even urged the same method for criminal cases.[177] For instance, George H. Williams, former U.S. Senator, U.S. Attorney General, and judge, urged “the total abolition of jury trials in all our courts.”[178]

But at the same time as the jury was being criticized and reformed, pro-jury measures were also being urged and adopted.[179] The jury in late nineteenth century America was, as Lawrence Friedman observed, “lionized” as well as deeply “mistrusted.”[180] According to Friedman, the average member of the public would “nod in solemn agreement” with high-minded paeans of “the wonders and the fairness” of the traditional jury system, while at the same time wanting “an efficient, effective system” of criminal justice that reliably convicted “dangerous criminals.”[181]

Differing views often tracked a class divide. Members of the elite corporate bar and academics were generally on the anti-jury side, while many of the pro-jury voices were populist reformers in the old Jacksonian mold, small-scale trial lawyers, and state legislators. But some proponents of the old-time jury rules were also the leading lights of the bar. Joseph Choate—one of the country’s most prominent lawyers, a leader of anti-Tweed reform in New York, and ambassador to Great Britain from 18991905—used his annual address as president-elect of the ABA to extol the virtues of the jury and denounce reform proposals.[182] Dwight Foster, former Massachusetts Attorney General and Supreme Judicial Court Justice and son of a Federalist U.S. Senator, enumerated all the many “[a]dvantages of the Jury System” for the North American Review’s highbrow audience.[183]

The modal elite lawyer—if such a person could have been found and polled—probably favored real but not far-reaching reform of the jury. Supreme Court Justice Brewer, for example, castigated “[t]he impatient radical” who promotes far-reaching changes in the jury and spoke in favor of limiting voir dire, abolishing unanimity, and permitting juries of fewer than twelve persons “where lighter offences are charged or the amount in controversy is small.”[184] Judge Coxe called it “idle to advocate the abolition of trial by jury” because the jury’s foundations are too deep in law and history of the people.[185] But he thought that civil cases “involving commercial transactions, expert knowledge, careful mathematical calculations, or the consideration of long and intricate accounts” could be tried to the court alone and that the rule of unanimity should be abolished.[186] George Washington Biddle of Philadelphia extolled the jury in criminal and tort cases in his address to the ABA, but advocated that contract cases be tried to panels of three jurors, selected from the better men in the community.[187] Justice Henry Brown thought the criminal jury was “the best method yet devised for the determination of criminal cases,” but that the unanimity rule should be abolished and that the jury trial was not “well adapted to certain classes of [civil] cases.”[188]

Resistance to reform of the jury was likely caused in part by a deep-seated Burkean conservatism about law and society that was common among elite lawyers of that era. The reigning worldview of many lawyers has been called classical legal orthodoxy, which held, among other things, that law “must be the product of the ideas and life of the people over which it dominates; it must spring from the soil.”[189] According to the influential treatise writer and judge, Thomas Cooley, “the common reason of the people”[190] or the “settled conviction of the people as to what the rule of right and conduct should be” were the only legitimate sources of law.[191] Habit and custom were thus the most important foundations of law.[192]

These views were second nature to elite lawyers of that generation, such as Root and Taft. This view did not exclude reform; it simply meant that reform should try as far as possible to respect a people’s underlying traditions and habits. More than any other legal right that a litigant might invoke, the right to the jury—the right to call upon an institution which constantly and by design brought lay persons into responsible governance roles—necessarily required a close correspondence between law and society. Judges and lawyers alone cannot administer the jury right. The jury could only work if it “spr[a]ng from the soil.”[193] In the United States it did; the jury was viewed by many as a time-honored rite of citizenship and a hallowed protector of liberties. Reform of such an entrenched institution should only occur if serious problems required it.

For thorough-going critics of the jury, skepticism of the jury often accompanied deep faith in judges. Many reforms concerning the jury were explicitly designed to empower judges, such as allowing more directed verdicts in civil cases and permitting parties to waive jury trials. Men like Taft and Root spoke frequently in favor of strong, independent judges who should be unhampered by legislatures in the setting of judicial procedure.[194] But important elements in American society had for some time been pushing in the opposite direction: to increase the power of juries and reduce the power of judges. Starting in about the 1890s, “progressive and populist officials and journalists had been clamoring for judicial recall” in places where judges were not elected.[195] A large number of states adopted rules prohibiting judges from commenting to the jury on the evidence.[196] During the nineteenth century, by statute or constitutional provision, twenty states prohibited this.[197] By judicial decision, another fifteen states adopted the same rule.[198] Some states went further and prohibited judges from charging the jury orally; instead, they were limited to approving written charges offered by lawyers and forwarding them to the jury.[199]

These rules were anathema to people like Root and Taft. The latter complained that “[t]he institution of trial by jury has come to be regarded as fetish to such an extent that state legislatures have exalted the power of the jury and diminished the power of the court.”[200] The result, he said, is that “the questions, both of law and fact, are largely left to the untutored and undisciplined action of the jury, influenced only by the contending arguments of counsel.”[201] Echoing Taft, Justice Henry Brown of the Supreme Court—author of Mankichi and part of the majority in Dorr, the key Insular Cases holding that juries were not constitutionally required in unincorporated territories—complained that “[t]he tendency of modern legislation has been to belittle the functions of the court, and to make of the jury a kind of fetish.”[202]

The debates between these competing views about the merits of juries versus judges played out in Congress, the executive branch, and the new insular governments when the United States set about reforming the judicial systems of Puerto Rico and the Philippines. As will be seen, the views of elite lawyers who were skeptical of the jury were the decisive ones.

III.  Jury Rights in Supreme Court Case Law from the Mainland

During the period of ferment and reform in legal procedure and jury practices, the Supreme Court began to confront arguments by litigants that state-level procedural reforms that departed from the baselines of the common law and the federal Bill of Rights were unconstitutional under the new Fourteenth Amendment. The Court’s responses to these arguments created a set of precedents that were crucial to the resolution of the Insular Cases concerning jury rights, undercutting any contention that racism and notions of cultural inferiority can fully explain the MankichiDorr-Balzac line of Insular Cases, in which the Court held that jury rights were not constitutionally guaranteed in unincorporated territories.[203]

In the late nineteenth and early twentieth centuries, the Supreme Court rejected the view that is today called “incorporation” of the Bill of Rights: that the Fourteenth Amendment’s Privileges and Immunities Clause and Due Process Clause had the effect of requiring that states comply with the provisions of the Bill of Rights.[204] This modern use of the term, incorporation, is different than how it was used in the Insular Cases, in which it meant Congress acting to make a territory an integral and permanent part of the United States, thus fully extending the Constitution to it.[205]

The Court ruled repeatedly that the Fourteenth Amendment did not require states to adopt the Bill of Rights rules concerning juries, specifically grand juries[206] and civil petit juries in suits at common law.[207] Justice John Marshall Harlan, the strongest opponent of the territorial incorporation doctrine in the Insular Cases, was the only Justice who persistently dissented in these Fourteenth Amendment cases denying jury rights.[208]

Since all states by their own constitutions required criminal petit juries, the Supreme Court never had the opportunity to squarely decide whether this was required, though it stated several times in dicta that it was not.[209] “[T]he requirement of due process does not deprive a State of the power to dispense with jury trial altogether,” the Court stated.[210] In another case, the Court opined that it would not violate the Fourteenth Amendment if a state “should see fit to adopt the civil law and its method of procedure.”[211] In yet a different case, the Court presciently stated that the United States “[i]n the future growth of the nation . . . may see fit to annex territories whose jurisprudence is that of the civil law,” and that the Fourteenth Amendment would allow, if such a territory “enter[ed] the Union” as a state, for its “traditions, laws, and systems of administration [to remain] unchanged.”[212] Although some civil law jurisdictions in Europe had introduced jury trials in some criminal cases by the late nineteenth century,[213] the leading characteristic of civil law criminal procedure was an inquisitorial judicial role that did not use a jury for fact-finding.[214] In addition to this dicta, the Court did squarely hold that it did not violate the Fourteenth Amendment for states to provide, in criminal cases, waiver of jury trials,[215] juries of fewer than the twelve persons required by common law and the Sixth Amendment,[216] or for a judge to decide on the grade of the offense after a defendant pleaded guilty to murder.[217]

In these cases upholding the constitutionality of states’ departures from historical jury practices, there were several important strands of reasoning. First was a textual argument. The Fifth Amendment Due Process Clause was not understood to require any jury rights since those rights were separately provided in other Constitutional provisions.[218] To read the Due Process Clause as an additional guarantor of jury rights would violate the non-surplusage canon.[219] Therefore, the identically-worded Due Process Clause of the new Fourteenth Amendment should not be read to incorporate jury requirements either.[220]

Second was a historical argument. Due process had been understood to require only that judicial procedures follow the law of the land—the standing law of the jurisdiction, whatever it was—as long a few core requirements were met: notice and an opportunity to be heard before an impartial tribunal of competent jurisdiction.[221] No more was required. Sometimes the Court would say, instead of enumerating the core requisites of notice and the like, that Due Process prevents states from violating “those fundamental principles of liberty and justice which lie at the base of all our civil and political institutions.”[222] This understanding that the jury trial was a mere mode of procedure and not a fundamental right was soon applied by the Court in the somewhat different setting of the Insular Cases.[223]

As for the Privileges and Immunities Clause of the Fourteenth Amendment, the Court adhered to its holding in the Slaughter-House Cases (1873) [224] that the privileges or immunities of U.S. citizenship protected by the clause had nothing to do with ordinary judicial procedure, but rather included such things as the right “to demand the care and protection of the General Government over his life, liberty[,] and property when on the high seas or within the jurisdiction of a foreign government.”[225]

A vitally important part of the Court’s reasoning in these cases was a desire to allow state-level experimentation and reform of procedure, including jury practices. In its 1884 Hurtado v. California decision holding that the Fourteenth Amendment did not require states to use grand juries, the Court noted that “in this quick and active age,” “progressive growth and wise adaptation to new circumstances and situations” was desirable in criminal procedure.[226] In its 1898 Holden v. Hardy decision holding that criminal juries of fewer than the historic twelve members did not violate the Fourteenth Amendment, the Court opined at length about the need for “progressive” growth and flexibility.[227] “[T]he law is, to a certain extent, a progressive science;” “in some of the States[,] methods of procedure, which at the time the [U.S.] constitution was adopted were deemed essential to the protection and safety of the people, or to the liberty of the citizen, have been found to be no longer necessary.”[228]

A number of states, the Court noted, had abolished grand juries and the rule of jury unanimity in civil cases.[229] The U.S. Constitution was “to a large extent inflexible and exceedingly difficult of amendment,”[230] and so its criminal procedure provisions in the Bill of Rights were likely permanent. But the Court did not want to use the Fourteenth Amendment to apply the Bill of Rights to the states and hence “to deprive the States of the power to so amend their laws as to make them conform to the wishes of the citizens.”[231] In short, states should be free to choose what the Court called “simpler and more expeditious forms of administering justice” than what the Bill of Rights required in federal court.[232] In a 1908 case, the Court declared that “the procedure of the first half of the seventeenth century” should not be “fastened upon the American jurisprudence like a straightjacket, only to be unloosed by constitutional amendment,” because this would render state law “incapable of progress or improvement.”[233]

In these cases, the Court was reflecting, more than leading, elite opinion about the need to facilitate reform of legal procedure and, in particular, jury practice. And as demonstrated in Part II above, skepticism about juries and a desire for fundamental procedural reform were widespread in the late nineteenth and early twentieth centuriesincluding among Supreme Court Justices.[234]

IV.  The Jury and Other Individual Rights in the Philippines

The executive, and later Congress, introduced fundamental reforms in the Philippines to better protect individual rights, not only, but especially in the criminal justice process. However, the jury was not introduced. Although there was racism and cultural chauvinism among American policymakers, there is significant evidence that the U.S. government was also proceeding in a good faith effort to introduce the legal system that would best conform to the traditions and customs of the people of the Philippines, while protecting fundamental rights. In Dorr, the Supreme Court would ratify Washington’s decision to omit the jury, while granting most other rights found in the Constitution to residents of the Philippines.

A.  The Period of Military-Executive Government

Early in the period of U.S. military rule, which started in 1898, a fact-finding group was created by President McKinley and sent to the Philippines. The group, led by Jacob Schurman, the president of Cornell University, ultimately recommended in January 1900 that the United States institute an American “scheme [of territorial] government” like the one used in Louisiana in 1804, but with greater local self-government.[235] The Schurman Commission further recommended that Congress provide by statute that “no law shall be valid which is inconsistent with the Constitution and laws of the United States,” and that criminal and civil jury trials be introduced.[236] But different plans were being made in Washington.

Soon after he was appointed Secretary of War, Elihu Root released in November 1899 a public report setting forth the administration’s legal policy toward the islands. Root’s report announced that “the people of the islands have no right . . . to assert a legal right under the provisions of the constitution which was established for the people of the United States themselves and to meet the conditions existing upon this continent.”[237] Any U.S. military or executive officials who had taken the position that the Constitution was applicable in the new territories were overruled. Also implicitly overruled was the Schurman Commission, whose final report recommending application of the Constitution in the Philippines was then under preparation.

Root told a correspondent that one of his fundamental premises was that “the basis upon which we should proceed in these islands is to be found in the customs and business and social life of the islanders themselves,” and not in “the common law”—on which the criminal procedure guarantees of the Bill of Rights were based—which is “the customs, etc., of New England or Nebraska.”[238]

Root also opined in his 1899 report that:

The people of the ceded islands have acquired a moral right to be treated by the United States in accordance with the underlying principles of justice and freedom which we have declared in our Constitution, and which are the essential safeguards of every individual against the powers of government, not because those provisions were enacted for them, but because they are essential limitations inherent in the very existence of the American Government. . . . [The people] are entitled to demand that they shall not be deprived of life, liberty, or property without due process of law, that private property shall not be taken for public use without [just] compensation, that no law shall be passed impairing the obligation of contracts, etc., because our nation has declared these to be the rights belonging to all men. . . . It is impossible that there should be any delegation of power by the people of the United States to any legislative, executive, or judicial officer which should carry the right to violate these rules toward anyone anywhere.[239]

Root’s enunciation of fundamental limitations on the power of government closely paralleled the fundamental rights protected by then-current U.S. constitutional law. Both the federal government and the states were bound to provide due process of law,[240] and the Supreme Court had just two years earlier held that due process is violated if a state government takes private property for public use without paying just compensation.[241] The same rule bound the federal government through the Fifth Amendment’s Takings Clause.

Root recommended that insular governments should be created “subject to limitations prescribed by Congress of the same character as the constitutional limitations generally imposed upon our state legislatures.”[242] Because U.S. state constitutions generally paralleled the federal Bill of Rights in their limitations upon government, Root was in effect recommending a statutory bill of rights. He praised “[t]he civil code established by Spain for Cuba, Porto Rico, and the Philippines” as “an excellent body of laws, adequate in the main, and adapted to the customs and conditions of the people.”[243] Reform was needed in procedure, however, “[i]n order to secure a good administration of the laws.”[244]

In April 1900, President McKinley appointed a second Philippine Commission to actually institute civil government. His orders to the Commission, which were published in the press, required the Commission to create a government that conformed as much as possible to the Filipino’s own “customs, . . . habits, and even their prejudices,” but also to “certain great principles of government which have been made the basis of our governmental system, which we deem essential to the rule of law and the maintenance of individual freedom.”[245] There should be no surprise that this tracked the views of Root and Taft, for they were the authors, with Root writing the first draft.[246] The instructions document then continued in the same vein as Root’s 1899 report had; the President ordered the Commission to create a government which, at every level, division, or branch, respected “inviolable rules”:

That no person shall be deprived of life, liberty, or property without due process of law; that private property shall not be taken for public use without just compensation; that in all criminal prosecutions the accused shall enjoy the right to a speedy and public trial, to be informed of the nature and cause of the accusation, to be confronted with the witnesses against him, to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense; that excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted; that no person shall be put twice in jeopardy for the same offense or be compelled in any criminal case to be a witness against himself; that the right to be secure against unreasonable searches and seizures shall not be violated; that neither slavery nor involuntary servitude shall exist except as punishment for crime; that no bill of attainder or ex post facto law shall be passed; that no law shall be passed abridging the freedom of speech or of the press or of the rights of the people to peaceably assemble and petition the government for a redress of grievances; that no law shall be made respecting an establishment of religion or prohibiting the free exercise thereof, and that the free exercise and enjoyment of religious profession and worship without discrimination or preference shall forever be allowed.[247]

Taft was proud of the document because, he said, it “secured to the Philippine people all the guaranties of our Bill of Rights except trial by jury and the right to bear arms.”[248] The document did not state that the Constitution itself protected the Filipino people. Root had previously opined that the Constitution itself—as distinguished from the inviolable, great moral principles of free government found in it—did not apply in the new territories.[249] And Root’s view had become the official position of the executive branch.[250]

In the meantime, the U.S. army had been busy fighting an insurrection in the Philippines. After the United States more or less destroyed a traditional military organization led by Filipino general Emilio Aguinaldo in 1899, a second phase of the insurgency began—a guerrilla war in remote areas of the archipelago.[251] Starting in late 1900, U.S. tactics became increasingly harsh, including waterboarding for interrogation, the summary execution of captured insurgents, and collective punishment of villages that harbored them.[252] But the core parts of the Philippines, where about 75 percent of the population lived, were quiet, and the U.S. government moved to establish civilian rule there.

The army in the Philippines almost immediately decided that it must reform the administration of justice. Spanish criminal procedure—a civil law product—effectively put the burden of proof on the criminal defendant, required the defendant to give testimony, and had limited mechanisms for procuring testimony of defense witnesses.[253] During the inquisitorial or “sumario” phase of a criminal proceeding, witnesses selected by the government were interviewed in secret and outside the presence of the accused or defense counsel.[254] The resulting transcripts were used as evidence in the judicial finding of guilt or innocence.[255] Hearsay was “freely admitted,” while family and employees of the accused were barred from testifying.[256] Lengthy pre-conviction detentions—sometimes lasting years—were common.[257] In the view of many American lawyers who went to the Philippines, the criminal process under the Spanish codes and rules was so lengthy and “red tape was so interminable as to amount practically to a denial of justice.”[258] “[T]he impecunious accused was thought to have no chance as against the law’s delay.”[259] The paper requirement of a speedy trial was “universally abused,” and no remedy similar to habeas corpus existed.[260] Widespread corruption by Spanish-era judges and other officials was alleged.[261] Judges were not independent of the executive.[262]

The military introduced many familiar American concepts to reform criminal procedure, but not the jury. General Orders 58 (“G.O. 58”) was issued in April 1900 under the authority of the commanding general and U.S. military governor in the Philippines.[263] The order remained, even after civil authority took over from military, the Philippines’ “Code of Criminal Procedure.”[264] By design, G.O. 58 was simple and brief. There was “a crying need” for a “simpler and speedier” mode of criminal procedure, as former Nebraska law professor turned Philippine judge Charles Lobingier put it.[265] An Army lawyer in the Philippines noted that G.O. 58 eschewed technicalities found in U.S. law and called it “nothing less than a declaration of war on the time-fortified, justice-thwarting technicalities and methodism of common law criminal procedure.”[266] Procedure under G.O. 58 proved in practice “simplified and highly effective.”[267] At a time when “public opinion, led by thoughtful men of the legal profession” are, in the United States, demanding “radical procedural reform in the field of criminal law,” the Philippine example was thought to be instructive.[268]

G.O. 58 announced a great number of familiar rights for criminal defendants. Defendants had a right to notice of the nature of the offense charged, personal presence and assistance of counsel “at every stage of the proceedings,” to be confronted in court by any adverse witnesses, and to compulsory process for securing attendance of defense witnesses.[269] Any competent person could be a defense witness.[270] There was a privilege against self-incrimination and its associated ban on drawing adverse inferences from the failure of the defendant to testify.[271] Trials had to be “speedy and public.”[272] The defendant was “presumed to be innocent until the contrary [was] proved” beyond a “reasonable doubt.”[273] At arraignment, a defendant was told of his right to counsel and, if “unable to employ counsel, the court [was required to] assign counsel to defend him.”[274] This supplemented an 1899 general order of the military governor establishing a procedure for appointment of counsel for indigent defendants, which also prohibited appointed counsel from demanding any fees from those who “have the right to be defended as a poor persons.[275] G.O. 58 protected against double jeopardy.[276] All offenses were bailable except capital crimes “when proof of guilt [was] evident or the presumption of guilt [was] strong,” as found by the court at a preliminary examination.[277] The right of habeas corpus was guaranteed to “[e]very person unlawfully imprisoned or restrained of his liberty under any pretence whatever.”[278] Search warrants could only issue under oath if probable cause were established and had to satisfy Fourth Amendment-type particularity requirements.[279] When the civilian government took over civil authority from the military governor, the Philippine Commission, headed by Taft, left the Army’s criminal procedure code intact.[280]

B.  Decision-Making About the Jury in the Philippines

Root and Taft, supported by President McKinley, had already decided and implied in the Instructions document of spring 1900 that the jury would not be introduced in the Philippines. But a significant period of fact-finding and debate was still to come, as both the Schurman Commission and then a second Philippine Commission headed by Taft held extensive hearings in the Philippines. Meanwhile, the U.S. Congress debated what kind of organic act of government it should create for the islands. If there had been very strong support for the jury in either the Philippines or Washington DC, things might have turned out differently. But there was not.

American officials were not being pressed hard for jury trial by the Filipinos they consulted during the early years when the key choices about legal architecture and extension of the Constitution were first made. In 1900, a group of “[t]he most influential and honorable natives,” identified as leaders of a nascent “Autonomy Party,” indicated to the Schurman Commission that they did not oppose introduction of a legal code lacking jury rights.[281] A Spanish lawyer who had relocated to Manila about twelve years before the Americans came, told the Schurman Commission that he thought jury trials would be desirable in criminal but not civil cases, and was concerned that “the people would have to be educated to be fit to serve as jurymen.”[282] But a leading Filipino lawyer in the islands, Cayetano Arrellano y Lonzón, who was chief justice of the Philippine Supreme Court from 1901 to 1920, was of the view that Filipinos were not ready for jury trial.[283] In 1902, Taft, who had been in the Philippines for about a year by that time, asserted that U.S. policymakers, who had been holding hearings and conducting fact-finding, had “found no person desiring [trial by jury] at present even among the people of the Islands.”[284] Filipino lawyers seemed to favor some procedural reform, but did not want a wholesale uprooting of the civil law system to which they were accustomed.[285]

The first organized and active political party after the American takeover, the Federal Party, which mainly represented pro-American elites and was co-founded by Arrellano, held conventions and published detailed policy recommendations and party platforms starting in 1900. It did not advocate the adoption of the jury trial.[286] Spain had introduced the criminal jury at home in the late nineteenth century, but had refused to extend the institution to its colonies like Puerto Rico and the Philippines.[287] This could have been a source of complaint by Filipinos, if they desired the jury trial, but it does not seem to have been. In 1898, a revolutionary Filipino Congress wrote a constitution for their proclaimed independent state. This Malolos Constitution mostly copied constitutional guarantees found in constitutions of civil law countries and did not contain a jury trial right.[288]

During the early years when U.S. policy was being set, Taft spoke repeatedly to Congress and the U.S. public against the jury trial in the Philippines. Senator Henry Cabot Lodge of Massachusetts, the administration leader on the issue in the U.S. Senate, credited Taft with persuading the Senate Committee on the Philippines that the jury trial was not at that time appropriate for the Philippines.[289] As Taft noted, “the population has had no experience with the jury system.”[290] This was a very important point for Taft, Root, and other elite lawyers whose worldview was shaped by the reigning classical legal orthodoxy. The jury did not “spring from the soil;”[291] the Philippines had been an autocratic society with essentially no self-government by the people and an inquisitorial, judge-controlled, paper-based legal system.[292]

Taft, who we have seen in mainland U.S. issues was a strong believer in judges, repeated in his many public statements that U.S. efforts had created a robust insular court system and that issues of both fact and law could be appealed to the Supreme Court of the Philippines in any case.[293] He pointed out that, at most, 10 percent of the population could speak or write Spanish (the then-language of the judicial system) and referred to the remaining 90 plus percent as “densely ignorant, very superstitious, very timid and with most indifferently developed political ideas of any kind.”[294]

Taft’s most commonly voiced explanation for opposing the jury in the Philippines concerned the people’s attitudes toward the government. He believed uneducated Filipinos:

have too great respect for the local authority of the wealthy or educated men owning land in their neighborhood. They are subject, therefore, to being led by the misrepresentations and threats of ambitious or unprincipled agitators of the better class. They have no idea of government except that of the absolute rule of somebody over them.[295]

He was referring to the outsized influence of a class of people often called caciques, local leaders who were generally landowners, employers, social arbiters, and political bosses rolled into one.[296] Even among the educated class, Taft opined, “there is not yet developed that sense of impartial justice which a people must have in some slight degree in order to make it safe that there should be a popular tribunal like that of a jury.”[297] As Taft explained in 1904, “[i]t is the failure to identify themselves with the Government as part of it, and as responsible for its proper administration, that renders the great body of the Filipino people at present unfit for complete self-government and the introduction of the system of jury trial.”[298] Without a “sense of responsibility for the government” and “identification with the government,” jurors “are certain always to release the prisoner and to sympathize with him in the prosecution against him.”[299] Sometimes Taft expressed this thought in the racialized language of his era:

Manifestly such a tribunal [the jury] would have no place among an ignorant people, or indeed, even among a people who are somewhat educated, if they have not inculcated in them a sense of responsibility for, and of sharing in, the government. Such people are likely to prove unworthy jurors and to be affected in all their verdicts by their emotions and by every other motive than that which should control them, to wit: the well-being of society. It is this sense of justice which is implanted naturally in the Anglo-Saxon breast, but which is absent in the Porto Rican and the Filipino.[300]

Taft did not usually revert to racial essentialism, however, to explain his position on the inadvisability of the jury. He indicated to the Senate that he believed it was “the character of Spanish justice heretofore”—an arbitrary and corrupt system that gave the Filipino people no role in self-government—that explained their purported inability to identify themselves with the government and the well-being of society generally.[301] In another instance, Taft stated that the reason we don’t give them jury trial is because the people have not yet the sense of governmental responsibility, without which jury trial is a farce.”[302]

In his discussion of the jury system for Filipinos, Taft was repeating almost exactly the criticisms of jurors and the jury system in the United States that he, Root, Pound, and other elite lawyers and progressive academics had so often voiced.[303] It is hard to escape the conclusion that, when the politics and constitutional law applicable to the situation gave lawyers like Taft a relatively free hand to devise a justice system in the Philippines, they instituted the kind of system they would have liked to see in the mainland United States: no juries, strong judges, and simple, efficient procedure. The framing premise of Taft’s famous “disgrace to our civilization” speech about the failures of American criminal justice was that Americans would benefit, as Taft had, by closer acquaintance with the civil law tradition and its different, more efficient methods of judicial procedure.[304]

C.  Congress’s 1902 Organic Act

As the insurrection in the Philippines began to resolve in 1901, the U.S. Congress considered enacting an organic act creating a civil government. During the legislative process leading to the Organic Act, some opposition (Democratic and Populist) politicians objected to the lack of provision for the jury in the Philippines.[305] Some of this criticism may have been sincere; however, as noted above, many opponents of the administration’s colonial policy were motivated by racism and xenophobia[306] and raised constitutional issues solely for the strategic purpose of making it difficult to retain the Philippines as an American possession.

Congress enacted the so-called Philippine Bill (Philippine Organic Act) in July 1902.[307] The act ratified the president’s creation of the Philippine Commission, which possessed executive and legislative powers and was headed by a civil governor (then Taft).[308] The act also provided that, two years after the rebellion ended, elections would be held for a general assembly to serve as the lower house of the legislature, while the Philippine Commission would constitute the upper legislative house and, at the same time, continue serving as the executive cabinet of the governor.[309] The Philippine Supreme Court, courts of first instance, and municipal courts were continued.[310] And the U.S. Supreme Court was given jurisdiction over final decisions of the Philippine Supreme Court, including in cases which any “right, or privilege” under “the Constitution . . . [was] involved.”[311]

The Organic Act specifically disclaimed application of the U.S. Constitution in the Philippines.[312] But the Act included an extensive statutory bill of rights that largely duplicated the exact wording of the individual rights provisions of the U.S. Constitution.[313] There was no mention of rights to a grand jury or petit jury. The Second and Third Amendments were omitted.[314] And there were a few rights provided for that were not found in the U.S. Constitution, namely a guarantee of bail in all but capital cases and a ban on imprisonment for debt.[315] Early on, the U.S. Supreme Court decreed that provisions of the statutory bill of rights in the Organic Act would be interpreted to have an identical scope to analogous provisions of the U.S. Constitution.[316]

 D.  The Mankichi and Dorr Cases: Jury Is Not Constitutionally Required in Unincorporated Territory

The first Insular Cases concerning jury rights reached the U.S. Supreme Court in 1903 and 1904. The first case, Hawaii v. Mankichi, concerned a criminal conviction obtained in 1899 in the local courts of Hawaii, without a grand jury and with a non-unanimous petit jury, during the time between the U.S. annexation of the island in 1898 and Congress’s act in 1900 formally incorporating it into the union and extending the Constitution.[317] Both the Court and the executive branch were aware that this case would likely set the constitutional rule applicable to the unincorporated territories of Puerto Rico and the Philippines.

The U.S. brief to the Supreme Court first stressed policy—did the Supreme Court want to release every criminal convicted during that interregnum period simply because the ordinary Hawaiian justice system remained in place pending Congress’s actions?[318] On the constitutional question, the government conceded that under Downes v. Bidwell, the leading Insular Case from 1901, “there are certain limitations of the Constitution which apply to every place subject to the jurisdiction of the United States.”[319] So the U.S. government was not arguing that Hawaiians lacked constitutional rights from the moment of annexation.

Instead, the Solicitor General relied on the Supreme Court case law arising under the Fourteenth Amendment, which had held that U.S. state governments were not mandated by the Due Process Clause or the Privileges and Immunities Clause to use petit juries or grand juries, since those were “not fundamental” rights, but mere methods of procedure.[320] The rule for Hawaii prior to incorporation into the union should, the United States argued, be the same as it was for U.S. states.

The Court sided with the U.S. government. Citing its case law that held that the Fourteenth Amendment did not require U.S. states to use grand juries or twelve-man criminal petit juries, the Court held that the jury rights asserted “are not fundamental in their nature, but concern merely a method of procedure.”[321] The Court also determined that, by annexing Hawaii, Congress had not intended to “imperil[ ] the peace and good order of the islands” by holding all criminal convictions without a grand jury or twelve-man petit jury to be unconstitutional.[322] Justice White concurred on the ground that the mere annexation had not incorporated Hawaii into the union and the jury rights that would be required once incorporation occurred, in 1900, were not yet in force in 1899 when Mr. Mankichi was tried and convicted.[323]

The next year brought the case Dorr v. United States from the Philippines, which would determine whether the lack of a criminal jury trial in territorial courts violated the Constitution.[324] The U.S. brief was measured and merits-based, like the brief in Mankichi. The Solicitor General repeated arguments made by Taft, Root, and others: Trial by jury is “entirely unknown” to Filipinos.[325] Instead, they have a bench trial system which is “time-honored,” “familiar to the people,” and “perfectly adequate to all the demands of justice.”[326] Unlike in Spanish times, the Solicitor General wrote, the judiciary is independent and the people have all modern criminal procedure protections except jury rights.[327]

The U.S. brief then deployed the same argument as in Mankichi: since jury rights were declared “not fundamental” and not required for U.S. states, the same rule should apply in unincorporated territories. The Holden and Hurtado decisions, discussed in Part III, were quoted at length.[328] It was Holden in which the Court had presciently stated, in February 1898, just weeks before the Spanish-American War started, that the United States “[i]n the future growth of the nation . . . may see fit to annex territories whose jurisprudence is that of the civil law” and that the Constitution should be interpreted to allow, if such a territory “enter[ed] the Union” as a state, for its “traditions, laws[,] and systems of administration [to remain] unchanged.”[329] This passage had also been quoted as the conclusion of the Attorney General’s main brief to the Court in the 1901 Insular Cases.[330]

The United States’ brief in Dorr did make an ethnocentric and patronizing comment: jury trial should not be required for a “heterogeneous population bred to a different method [of trial] and containing many primitive tribes inhabiting remote and unsettled districts.”[331] But the bulk of the argument proceeded along merits-based lines, noting the need to keep legal institutions tied to the customs of a people, the non-fundamental nature of the jury protection, and the need to allow criminal procedure to depart from a common law baseline when circumstances showed that other methods would be more efficient.

The Court sided with the United States again. In Dorr, the Court confirmed that the Philippines was unincorporated territory, where only “fundamental” constitutional rights applied.[332] Quoting Mankichi, the Court reiterated that the jury and grand jury were not fundamental rights, but mere methods of procedure.[333] The Court found that the President and Congress had decided not to extend jury rights to the Philippines because “the civilized portion of the islands had a system of jurisprudence founded upon the civil law,” which did not use juries, while “the uncivilized parts of the archipelago were wholly unfitted to exercise the right of trial by jury.”[334] The Court rejected any argument that a bench trial—joined with every criminal procedure right in the U.S. Constitution except the jury, as provided by G.O. 58 and the Congress’s Organic Act—was not “an adequate and efficient method of protecting the rights of the accused.”[335]

E.  Subsequent Debate in the Philippines About the Jury

In the first years of U.S. rule, the lack of jury in the Philippines was protested in the United States by Democrat politicians, anti-imperialists, and some U.S. citizens living in the Philippines.[336] Notably, in the period 19021920, all of the cases heard by the Philippine Supreme Court in which litigants demanded jury rights involved U.S. citizens temporarily or permanently relocated there.[337]

As a kind of sop to those who advocated the use of petit juries, the Philippine Commission introduced the use of lay “assessors;at the request of parties in civil and criminal trials, two lay people could be selected by the judge to hear evidence and give non-binding opinions on the facts to the trial judge.[338] But as one judge reported in 1914, based on his experience on the Philippine bench since 1901, that right “has rarely been exercised.”[339] And according to the judge, “[n]ever in the islands’ history have property and life been more secure than today throughout the breadth of the islands,” “nor has justice been so equitably administered.”[340]

There was some native Filipino advocacy in favor of the jury trial, but upon examination, it appears to be rather insignificant. In 1907, the Nacionalista Party won a majority of seats in the new lower house of the Philippine Assembly. The Philippine Commission was still the upper house of the legislature, so the bicameralism requirement gave it a veto over bills from the Assembly. The Nacionalista Party advocated “independence, freedom to carry arms, jury trials, [and] a readjustment of the native members of the Philippine Commission so as to give the Nationalists representation on the commission.”[341] The Nacionalista-dominated Assembly passed a jury bill in 1908, which was promptly vetoed by a unanimous Commission. James Le Roy, who spent several years in the Philippines as a secretary to the Commission, reported that:

[t]here is some agitation in the islands for jury trial, and it found expression in the first session of the Assembly. It is, however, political in character; some Filipinos who have vague ideas about the workings of jury trial advocate it, because they suppose it to be an essential accompaniment of self-government and therefore desire it as a new political right for their people.[342]

This view—though rather ungenerous—seems plausible given the clearly problematic jury bill that was produced by the Assembly.[343]

From what I can learn, no other jury bill was introduced in the insular legislature during the time period under consideration. According to one mainland American who was a judge in a Philippine court of first instance, “[t]here is today [1913] no demand from any important sources in the islands for the establishment of the jury system.”[344] When Congress revisited the question of civil rights of Filipinos in what became the Jones Act of 1916, the suggestion of some U.S. congressmen that jury trial should be extended to the Philippines was opposed with the assistance of the Filipino Resident Commissioner, Manuel Quezon, the most powerful politician in the islands. He based his objection “on the fact that under the Philippine legal system the Filipinos had never had occasion to exercise the right of jury trials, and that in certain backward communities in the Islands it would be very difficult to secure qualified jurors.”[345]

The individual rights provisions of the Philippine Organic Act were repeated in the 1916 Jones Act (Philippines), and jury rights were again omitted.[346] The sponsor of the legislation, Representative William Jones, a Virginia Democrat and chairman of the Committee on Insular Affairs, stated that Congress was pleased with the Philippine court system as it was, and would defer to the Filipino legislature to decide whether to introduce the jury trial.[347] He added that “there is no demand on the part of the Filipinos for jury trials. There has been none on the part of the Filipino bar.”[348]

Mainland Americans who worked in the Philippines often praised the Philippine judicial system and administration of justice for having “greater d[i]spatch, economy, and efficiency than in the States.”[349] According to one writer, the “facility and economy in the administration of justice in the Philippines is due in large measure . . . to the fact that justice is administered by the judge alone without the intervention of a jury.”[350] A Texas attorney who spent over a decade practicing in Philippine courts unqualifiedly endorsed non-jury trials: “I believe that fewer innocent men suffer and less guilty ones go free in the Philippines than in [the United States],” he claimed. [351] The jury system “is slow, unreliable and does not gain the same results.[352]

In 1934, Congress authorized the Philippines to draft its own constitution, as a step toward independence after a transitional period.[353] The 1935 Constitution contained a bill of rights, but no right to a jury.[354] The Philippine Constitutional Convention had reached “consensus that the Philippine judicial system did not require this provision [jury trial] to safeguard the rights of the individual.”[355]

V.  The Jury and Other Individual Rights in Puerto Rico

Although they were both unincorporated territories and thus subject to the same constitutional rules, Puerto Rico and the Philippines were treated very differently by U.S. policymakers from the beginning. The prospect of permanently annexing and assimilating the Philippines into the union was anathema to large segments of the American public. But as noted, it was widely assumed that Puerto Rico would become a permanent part of the United States. Unlike in the Philippines, there was no rebellion against U.S. rule in Puerto Rico. Puerto Rico was relatively close to the United States. And in 1900, the U.S. Census declared that a majority of the population was white, which no doubt helped a very racially-conscious American public feel more comfortable about Puerto Rico’s connection to the United States.[356]

As a result of these and other differences, Puerto Rico was governed with a much lighter hand from Washington than was the Philippines. Starting in 1900, an elected Puerto Rican legislative assembly wielded real political power. While U.S. policymakers still argued that Puerto Rico was unincorporated territory and that constitutional jury rights were not applicable there, they did not object much when the jury was introduced in Puerto Rico from the outset by local judicial and legislative action. As in the Philippines, the local population was protected by almost all of the same rights found in the U.S. Constitution, but via statute or rule, rather than direct application of the Constitution itself.

A.  The Period of U.S. Army Rule

The U.S. Army ruled Puerto Rico from 1898 until the spring of 1900, when a congressionally-created civil government was inaugurated.[357] In Puerto Rico, the U.S. military government found “great difficulties and delays attendant upon criminal and civil trials”[358]—just as it had in the Philippines. The Army engaged in a limited reorganization of the insular court system, leaving a supreme court, five district courts, and a municipal court in each town.[359] Lawyers of the U.S. military found that many charged with crimes, even petty ones, languished in jail for long periods of time without trial; there were also many complaints of arrests without charges and illegally severe punishments by the insular courts.[360]

For a time after U.S. rule began, the government was still largely staffed by Spanish-era officials.[361] The U.S. Army Judge Advocate in Puerto Rico recommended immediate reform of criminal procedure, requiring, among other things, that all trials be public, that trials for petty theft be conducted within three days of arrest, and that defendants have compulsory process to secure their witnesses.[362] But the holdover justice ministry in Puerto Rico opposed these reforms, so the U.S. military took another route and introduced habeas corpus.[363] A military order vested the power to issue the writ of habeas corpus in insular courts, which were still staffed by holdover judges from the prior regime, U.S. military commissions, and post commanders.[364] Some Spanish-era judges and executive officials informed U.S. officials that they agreed with many of the Army’s criticisms of the criminal procedure and the plans to reform it.[365] The military considered it important to replicate the American system on the island, whereby the courts are “absolutely independent of all executive interference or control.”[366]

B.  Congressional and Insular Legislation

1.  The Foraker Act for Puerto Rico

Starting in 1899, Congress began considering what form of government to enact for Puerto Rico and what its constitutional status would be. In January 1900, the commanding general of Puerto Rico, George Davis, told the Senate that he was opposed to “a radical change” in the legal codes of Puerto Rico. He believed that:

[T]he attempt to utilize the jury system in Puerto Rico should not now be made. They have no conception of it, and can have none for many years, it seems to me. I think it would be imprudent to attempt to establish the grand jury and petit jury and trial by jury throughout these municipalities and remote districts in that ignorant population.[367]

The military governors and Root agreed that Puerto Ricans were not yet fit for self-government. “[I]t is a matter not of intellectual apprehensions,” Root announced, “but of character and of acquired habits of thought and feeling.”[368]

President McKinley appointed a three-member Insular Commission to travel to Puerto Rico to gather facts and make recommendations. Like the Schurman Commission in the Philippines, the Insular Commission proved to be out-of-step with the views of U.S. policymakers. It recommended entirely abrogating Spanish era laws and extending in its place the common law, the U.S. Constitution, and U.S. statutes to the extent “locally applicable.”[369] While proposing no jury in insular courts, it recommended the creation of a separate federal court with a jury in felony criminal cases and on demand by either party in civil cases.[370] Henry G. Curtis, the chairman of the Insular Commission, told the Senate in January 1900 that his Commission thought that “the people were not ready” for jury trial; it would be a “farce” to impose jury trial in Puerto Rico with its “ignorant peons.”[371]

A more sympathetic account of the Puerto Rican people was produced by Henry K. Carroll, who was sent by President McKinley as a special Treasury Department agent and commissioner to investigate conditions in the island and make recommendations.[372] During his meetings with numerous Puerto Rican judges and lawyers in 1898 and 1899, Carroll acted as a kind of proselytizer for the extension of the Constitution, the jury system, and U.S. citizenship; his official report recommended all these measures.[373] Some, but not all, of Carroll’s interlocutors agreed with him. Herminio Diaz, the Secretary of Justice under Spanish rule, favored jury trial for serious crimes.[374] Alfredo Arnaldo, a judge in the court of first instance at Arecibo, strongly favored the jury because the Spanish penal system, particularly its procedure, “could not be worse” and, “as we are entering a period of more upright administration of justice, the people should administer their own justice.”[375] Alfredo Aguayo, a judge in the court of first instance at Ponce, also favored the jury as part of a larger criminal procedure reform to end abuses like incommunicado detention and secret trials.[376] But the senior judge under the old regime, Chief Justice José Servero Quiñones, testified to Carroll that the people were not “sufficiently well educated” for the jury system, and that he preferred factfinding by “trained legal criterion” conducted by professional judges.[377] Carroll replied that, “[t]here are many in the United States who agree with you that the judges, who are trained lawyers and who are generally impartial men, are more likely to give a correct judgment in many criminal cases than a jury.”[378] Other witnesses before Carroll agreed with Quiñones.[379]

In spring 1900, after a long period of debate—most of it behind the scenes—Congress enacted an organic act for Puerto Rico, popularly known by the name of its Senate sponsor, Taft’s Ohio patron, Joseph Foraker.[380] Consistent with the prevailing view of Root, Taft, and other elite lawyers imbued with classical legal orthodoxy that law should conform as far as possible to the traditions and customs of a people, Foraker’s committee announced its purpose “[t]o avoid as far as possible radical changes in the laws,” but to “make such modifications and alterations as are necessary to dispense with the most objectionable features of Spanish government and judicial administration.”[381]

The Foraker Act created an insular government composed of: a governor appointed by the president, with advice and consent of the U.S. Senate; a ten-member executive council, which also functioned as the upper house of the insular legislature, again, appointed by the president with advice and consent of the Senate, but limited by the stipulation that at least five members of the council “shall be native inhabitants of Porto Rico;” and an elected house of delegates, the lower house of the legislative assembly.[382]

A United States district court for the district of Puerto Rico was created. It was an Article I court (no life tenure for the judge), granted the same jurisdiction as district and circuit courts sitting on the mainland, and directed to “proceed therein in the same manner as a circuit court.”[383] The Supreme Court soon read this provision as requiring that the U.S. district court in Puerto Rico follow the procedure of U.S. circuit courts to mandate the use of grand juries and petit juries in civil and criminal cases.[384] Therefore, grand juries, civil juries, and criminal juries were used there from the beginning.[385] As Christina Ponsa-Kraus has noted, the Supreme Court never held that constitutional jury rights were inapplicable in the federal court in Puerto Rico.[386] The Foraker Act also gave the district court the power to issue writs of habeas corpus “in all cases in which the same are grantable by the judges of the district and circuit courts of the United States.”[387]

The local court system, as reorganized by the U.S. military, was continued in force by the Foraker Act, with a Supreme Court, several district courts, and local or municipal courts. The Supreme Court had the same authority to issue writs of habeas corpus as did the United States district court. The Foraker Committee approved of how U.S. military reforms had “greatly simplified” the judicial system and made it “more effective and less expensive.”[388]

The Foraker Act did not speak to whether the Constitution was applicable in Puerto Rico, but it did grant the U.S. Supreme Court jurisdiction to review judgments in cases arising in the U.S. district court or the insular Supreme Court, in which a claimed right under the Constitution, a U.S. treaty, or a congressional statute was denied.[389] There was no bill of rights in the Foraker Act.

Senator Foraker had initially favored including a provision extending the Constitution to Puerto Rico and granting citizenship to its residents.[390] As Judge José Cabranes has shown, the bill was changed due to concerns expressed by the administration and some members of Congress that U.S. government actions for Puerto Rico would be taken as precedents for the Philippines.[391] While American policymakers and much of the public were comfortable with keeping Puerto Rico permanently, the opposite was the case with the Philippines, so the provisions extending the Constitution and granting citizenship were removed.[392] Senators stated that the Constitution “is not suited to the Porto Rican people,” and “not necessary” for them.[393] Some of the Senators expressed the opinion that the natives of the island were not yet prepared for jury trials.”[394]

The Foraker Committee report asserted that “it is within the constitutional power of Congress to either extend or withhold the Constitution . . . as it may deem advisable.[395] Congress “is not bound, for instance, to require trial by jury in criminal cases, nor in civil suits at common law.”[396] Although the Constitution was not applicable, the Foraker Committee opined—along the lines that Root had—that Congress was nevertheless bound by certain “restraints and prohibitions,” so that it could not establish religion, prohibit its free exercise, impair the obligation of contracts, pass ex post facto laws or bills of attainder, allow slavery, abridge the freedom of speech, or take property without due process.[397]

2.  The Puerto Rico Legislative Assembly

Unlike in the Philippines, where Congress itself crafted a bill of rights, the new government of Puerto Rico was left to decide for itself what rights to protect by statute. From its first moments, the Puerto Rico Legislative Assembly took important actions to secure the civil rights of the inhabitants. The first act it passed gave criminal defendants the right to demand a jury trial for any capital crime and any charge carrying a sentence of two or more years of imprisonment.[398] This was a narrower right than what the U.S. Constitution provided because only petty offenses are excepted from the criminal jury requirement of the Sixth Amendment and Article III.[399] The jury measure was advocated by President McKinley’s appointee as the first governor of Puerto Rico, Charles Allen, in his inaugural address:

I believe you will find it expedient to adopt the institution of trial by jury without great delay. It will be a radical innovation, yet will carry with it the weight of generations of experience in lands where the liberty of the citizen i[s] most sacredly guarded. That the people may study its operation, it occurs to me that it may well be restricted for a time to criminal cases where the charge against the accused requires, if he is convicted, long term in the penitentiary, or capital punishment. With a prudent law for the selection of the jury, so as to insure jury panels which include good citizens who have tangible material interests in the government, I believe great good will follow from the experiment.[400]

Washington policymakers did not veto this move by Allen. The reach of the jury right was later changed slightly, when it was made applicable to felony casescrimes punishable by death or imprisonment in the penitentiary.[401] All other crimes were misdemeanors. In 1919, the Assembly extended jury rights to misdemeanors.[402] Therefore, from 1919, Puerto Rican courts guaranteed almost precisely the same criminal petit jury rights as mainland federal courts.

In a January 1901 criminal procedure reform statute, the 1902 “Act to Define the Rights of the People,” and the 1902 Code of Criminal Procedure, the Puerto Rico Assembly granted most of the same rights as were found in the U.S. Constitution and mainland case law interpreting it.[403] The First and Fourth Amendments to the U.S. Constitution were duplicated.[404] A twelve-person unanimous jury was guaranteed in felony cases.[405] The defendant was presumed innocent, and charges were required to be proved beyond a reasonable doubt.[406] There were protections against double jeopardy, a privilege against self-incrimination, a compulsory process right, a speedy and public trial, a venue or vicinage requirement, and the right to confront witnesses.[407] There was a presentment requirement and a right to presence at trial for felonies.[408] The Code of Criminal Procedure provided a habeas guarantee.[409] Procedural protections for treason prosecutions found in Article III of the U.S. Constitution were codified.[410] The statutory right to counsel was supplemented by a provision that said: [i]f the defendant appears for arraignment without counsel, he must be informed by the court that it is his right to have counsel before being arraigned, and must be asked if he desires the aid of counsel.[411] If the defendant “desires and is unable to employ counsel, the court must assign counsel to defend him.”[412] This right to appointed counsel for the indigent went well beyond what the U.S. Constitution was understood to require at the time.

The 1902 Civil Code of Puerto Rico protected against retroactive impairment of vested rights—very similar to what the Contracts Clause did.[413] Both the federal district court and the Supreme Court of Puerto Ricoheld that the Contracts Clause itself, or a fundamental principle of general law providing the same protection, were in force in Puerto Rico.[414] In a 1903 statute, the Legislative Assembly mirrored the core provisions of the Takings Clause of the Fifth Amendment.[415]

Not every constitutional right from the mainland was duplicated by local statute in Puerto Rico. There were no “due process” or “equal protection” provisions. With minor exceptions that came later, there was no grand jury used in insular courts.[416] Nor was there a civil jury in insular courts. There was no local statute paralleling the Ex Post Facto or the Bill of Attainder Clauses. The Second, Third, Eighth, and Thirteenth Amendments to the U.S. Constitution had no local statutory analogues. As in all other U.S. territories, the independence of judges in Puerto Rico was not protected by guaranteed life tenure.[417]

A few of the omissions were irrelevant—there was no chance that soldiers were going to be quartered in private homes or that slavery was going to be introduced in Puerto Rico. Most of the other omissions were supplied by judicial decision. Puerto Rico courts, for instance, affirmed and expressly endorsed by the U.S. Supreme Court on two occasions, held that the Constitution’s due process protections were in force in Puerto Rico from the time that the United States took sovereignty over the island.[418] Retroactive laws that prejudiced rights granted under previous statutes were invalid.[419]

Later, in the 1917 Jones Act, which granted U.S. citizenship to Puerto Ricans, Congress enacted a bill of rights which covered the spectrum of rights protected by the U.S. Constitution, omitting only the Second Amendment right to bear arms, the Third Amendment no-quartering rule, and the jury guarantees.[420] Several important rights in the Jones Act (Puerto Rico) went beyond what the U.S. Constitution conferred. Bail was guaranteed except in capital cases, imprisonment for debt was outlawed, as was child labor, and workers were guaranteed an eighthour day.[421] A summary chart comparing statutory and judicial protections in the Puerto Rico to provisions in the U.S. Constitution is found in Appendix A.

C.  Experience with Jury Trials in Puerto Rico During the Era of the Insular Cases

The jury system in the U.S. district court in Puerto Rico—grand jury and petit jury in civil and criminal cases, on the same terms as in the mainland—seemed to work well. Judge William Holt (190004) found that Puerto Rican jurors “performed as fairly, honestly and efficiently as jurors acting in the United States,” and noted that “Porto Ricans favor” the use of juries.[422] The only prominent complaint came from judges concerned about the difficulty of procuring qualified jurors. English was the official language of the federal court system, and in the early years after the American takeover, relatively few native Puerto Ricans spoke it fluently enough.[423]

There were more issues with the criminal petit jury in the local courts, where the vast majority of legal business was handled. Criminal defendants charged with felonies had the right to elect whether to be tried by a jury or judge. In the first seven months that the jury was available, only ten defendants elected it.[424] It seems that, naturally enough, Puerto Rican criminal defendants and lawyers preferred the system with which they were familiar, bench trials.[425]

In his 1903 annual report, the Attorney General of Puerto Rico called trial by jury “very disappointing.”[426] He reported that many thought “the lawyers themselves are the most serious obstacles in the way of jury trials.”[427] He concluded that “[i]t is a mistake to suppose that the people of Porto Rico are so lacking in either education or judgment as to be unable to furnish an abundance of competent jurors. The exact opposite is true.”[428] The problem, rather, was hundreds of years of Spanish authoritarianism had not given the people the proper “political training” to serve as a neutral arbiter between the state and the accused, capable of understanding and weighing the interests of both sides.[429] This was the same point Taft made in arguing against use of the jury in the Philippines.

The crux of the problem seemed to be that mainland American officials—for decades, both the governor and attorney general were from the mainland, appointed by the president of the United States[430]—thought that Puerto Rican juries acquitted the guilty too frequently. For the year from July 1, 1902 to June 30, 1903, 188 jury trials were held, out of 1,245 felony cases.[431] The acquittal rate was just over 49%.[432] Since jury trials were only held in felony cases,[433] it was often allegedlyguilty murderers and others charged with serious crimes who were going free. The next year, the governor reported that the jury system was not yielding “very satisfactory results.”[434] The acquittal rate in jury trials for that year was nearly 53%.[435] By way of comparison, acquittal rates in jury trials in New York County at the same time averaged in the high 30s.[436] As discussed in Part II, Taft, Root, and many other elite lawyers and academics thought the acquittal rates in the mainland United States were scandalously high. The rate in Puerto Rico—perhaps as much as 50% higher than the rate in the mainland, if New York County is representativea big assumption—surely troubled American policymakers. These facts may account for why Taft to use his 1905 “disgrace” speech to declare that the jury trial in Puerto Rico was a “failure.”[437]

But within a few years, the acquittal rate in jury trials in Puerto Rican local courts had declined substantially.[438] The legislature accepted the attorney general’s recommendation to enact a statute clarifying that judges had the power to comment and instruct juries on the judge’s view of the evidence. In 1911, the attorney general reported to the War Department that the jury system had submitted “a most remarkable showing.”[439] He told the New York Times that:

In some respects [Puerto Ricans] are far ahead of any State here. For instance, there is never in Porto Rico any complaint—as there is almost universally here—of the law’s delays. We don’t have law’s delays in Porto Rico. All cases are tried expeditiously and with even-handed justice in all the courts of the island, and protracted litigation is almost unknown.[440]

He ascribed the success to reforms that lawyers like Taft and Root had urged on the mainland for years: a harmless error statute, preventing “[a] mere technicality” from causing reversal, and the new statute “allowing a Judge to comment on the evidence and to sum up the case to the jury.”[441] Juries in Puerto Rico, he concluded, generally “decide quickly and justly.”[442] As noted in Section V.B.2, in 1919, the Assembly extended criminal petit jury rights to misdemeanor defendants. The right was codified in the Puerto Rico Constitution when it became a commonwealth in 1952. That constitution does not, however, guarantee a grand jury or civil jury.

D.  Muratti, Tapia, and Balzac: The Supreme Court Reiterates that the Jury Is Not Constitutionally Required

After the 1917 Jones Act extended U.S. citizenship to most Puerto Ricans and enacted a bill of rights that omitted the jury, litigants in Puerto Rican courts moved to reconsider the applicability of Dorr and Mankichi, arguing that Puerto Rico should now be considered an incorporated territory and that the U.S. Constitution, therefore, required the same jury rights in local courts as it did in mainland federal courts. This argument was plausible because the Supreme Court had held that citizenship for inhabitants of Alaska was an important indicium of that territory’s incorporation, which had made the Sixth Amendment jury right applicable there.[443]

In April 1917, the U.S. District Court for the District of Porto Rico granted a writ of habeas corpus directing that Carlos Tapia be released from custody of the local courts of San Juan, where he had been charged by information with assault with intent to kill.[444] In a lengthy and learned opinion, the judge held that because Puerto Rico had been incorporated into the Union, the Grand Jury Clause of the Fifth Amendment applied in the local courts.[445] He placed principal reliance on the Jones Act’s grant of citizenship.[446] Three months later, in the case of an accused murderer Jose Muratti, the Supreme Court of Puerto Rico agreed that the Grand Jury Clause applied in local courts because Puerto Rico had been incorporated by the Jones Act.[447]

Both cases were taken to the U.S. Supreme Court. The U.S. government argued there that the grand jury was “unsuited to the needs and habits of the people,” and, hence, would cause “injustice and provoke disturbance rather than to aid the orderly administration of justice.”[448] The government quoted Holden’s discussion of the desirability of allowing a territory with a civil law system of procedure to maintain “its traditions, laws, and systems of administration unchanged.”[449] And although the local legislature had the power to enact legislation for the grand jury, the civil petit jury, or the criminal petit jury in some classes of cases, the government brief’s noted that Puerto Rico’s representatives had not done so.[450] There were no racist or chauvinistic comments about the people of Puerto Rico in the U.S. briefing.

The brief continued that grand and petit juries had been repeatedly held to be “matters of procedure” rather than “fundamental” rights.[451] The grant of citizenship in the Jones Act did not show congressional intent to incorporate Puerto Rico into the Union; rather, it occurred within a month of the declaration of war on Germany, and “[i]t was highly important to remove any cause of ill feeling in Porto Rico and to encourage the loyalty of its citizens.”[452] Other provisions of the Jones Act (Puerto Rico) showed an intent not to incorporate and fully extend the Constitution: for example, the provision of a statutory bill of rights which omitted the grand and petit jury.[453]

The Supreme Court summarily reversed in Porto Rico v. Tapia, citing Mankichi, Dorr, and other Insular Cases,[454] thus voiding the lower court’s holding that Puerto Rico was incorporated and constitutional jury rights were applicable. The Court then summarily reversed in Porto Rico v. Muratti, citing Tapia.[455]

But the issue of whether the Jones Act (Puerto Rico) had effected incorporation and therefore extended constitutional jury rights to Puerto Rico did not go away. Jesus Balzac, a newspaper editor, was charged by information in 1918 in a local Puerto Rican court with criminal libel, a misdemeanor. He demanded a jury trial under the Sixth Amendment to the U.S. Constitution.[456] The Supreme Court of Puerto Rico upheld the local law’s denial of the jury for misdemeanorsonly felony defendants had a statutory right to jury trial under then-existing Puerto Rican lawby citing Muratti and Tapia.[457]

At the U.S. Supreme Court, the government treated the issue as settled. A government lawyer submitted a perfunctory brief, saying that Muratti and Tapia foreclosed Balzac’s argument about incorporation and jury rights.[458] Taft, now Chief Justice of the United States Supreme Court, affirmed for a unanimous Court.[459] The Court reiterated that constitutional jury rights under the Fifth, Sixth, and Seventh Amendments “do not apply to territory belonging to the United States which has not been incorporated into the Union.”[460] The Jones Act had not effected incorporation of Puerto Rico into the Union, despite the grant of citizenship, because, among other reasons, the statutory bill of rights had omitted the grand jury and petit jury, showing congressional intent not to fully apply the Constitution.[461] The Court was careful to note, however, that fundamental constitutional rights, including the Due Process Clause, “had from the beginning full application in . . . Porto Rico.”[462]

As support for its holding, the Court opined that the jury system requires “a conscious duty of participation in the machinery of justice which it is hard for people not brought up in fundamentally popular government at once to acquire.”[463] Congress must have determined—wisely, Taft suggested—that “Porto Ricans, trained to a complete judicial system which knows no juries, living in compact and ancient communities, with definitely formed customs and political conceptions, should be permitted themselves to determine how far they wish to adopt this institution of Anglo-Saxon origin.”[464] This passage certainly contains a whiff of a patronizing chauvinism, but there is more going on than that.

Taft was expressing, somewhat allusively, views that were second nature to him and other elite lawyers who came to the bar during the era of classical legal orthodoxy and became disenchanted with the jury. Law and legal institutions must “spring from the soil” and conform to people’s habits and customs if they are to work well. Making the jury work well was actually quite difficult, even in the mainland United States, where it had existed for centuries. As discussed in Section II above, the jury had fallen into disrepute among elite lawyers of Taft’s era. One should even be warier of the jury, Taft and others thought, in a formerly civil law jurisdiction that had no traditions of jury service or other kinds of popular self-government.

Conclusion

Many commentators have found that the Court’s decisions in the Insular jury cases—holding in Mankichi, Dorr, Balzac and other cases that constitutional jury rights were not fundamental and not applicable in unincorporated territory—must have been motivated by extra-legal views sounding in racism and cultural chauvinism. Those factors certainly played a role in policymaking by U.S. officials during the era of the Insular Cases. But on the issue of the jury and other criminal procedure rights, there were other considerations as well. In the Insular Cases about the jury, a majority of the Court agreed with the U.S. government and with the anti-jury movement in the mainland that jury trials were an outdated, inefficient, ineffective means of fact-finding and that U.S. officials and local legislatures in the territories should be left free of constitutional shackles so they could experiment and adjust criminal and civil procedure to the needs of their particular polities. In addition, it was very important to U.S. policymakers that the jury was not natively rooted in either Puerto Rico or the Philippines—those territories had unreconstructed civil law procedure during their long periods under Spanish rule. And they had lacked any other tradition of popular involvement in self-government. Given these considerations, U.S. policymakers decided not to import the jury, which was viewed as an institution in serious trouble even in the United States where it had existed for centuries and was buttressed by a long tradition of popular self-government.

By arguing that U.S. policymakers who thought that jury rights should not be extended to the Philippines and Puerto Rico were motivated by honestly and widelyheld views about procedural efficiency and problems with the jury, I do not mean to suggest that racism or cultural chauvinism were not present. They were. And by casting U.S. governance of those territories in a positive light as far as individual procedural rights were concerned, I do not mean to slight the real grievances that the people of both territories have had—and in the case of Puerto Rico, still haveabout U.S. rule. My goal, rather, is to provide a broader, more contextual picture of the decision-making of U.S. policymakers in order to better illuminate their values, preconceptions, objectives, and actions. This broader view shows a concerted effort to protect individual rights in the territories by U.S. policymakers, but a deep skepticism about the value of the jury as a means of doing that.

 When Taft, Root, and others who were critical of the jury were opposing its extension to the Philippines and Puerto Rico, they were often making the exact same arguments at the exact same time about the failure of trial by jury in the United States. The fact that jury rights were embedded in U.S. and state constitutions, and in the history and imagination of the American people, made many would-be jury reformers despair that they could never be eliminated in the United States. For rock-ribbed conservatives like Root, the historical and traditional roots of the jury in the mainland were reason alone to be very wary of reform there. Therefore, the focus of anti-jury reformers in the mainland was generally to tinker on the margins—for example, by getting rid of the twelveperson rule or the rule of unanimity. But where U.S. officials had a freer hand to design a legal system without the constitutional, emotional, and historical constraints they faced in the mainland, they were able to curtail, as in Puerto Rico, or entirely eliminate, as in the Philippines, the use of the jury.

APPENDIX

Table 1.  Federally-Protected Fundamental Rights, Mainland[a] and Unincorporated Territories (19001920)