bath

By Erin Kilgore and Scott Huffstetler

As with any change in administration, this is a time of uncertainty.  One example is the rights of transgender individuals to access certain restrooms in the workplace, which, based on recent events, will likely continue to be a source of uncertainty for many employers.

Federal law does not expressly prohibit discrimination based on transgender status.  Title VII is the federal employment law that prohibits discrimination based upon “sex” (among other protected characteristics).  The EEOC and some courts have interpreted “sex” under Title VII to include “gender identity.”  Under that interpretation, transgender individuals could be protected under Title VII.  Other courts have refused to adopt an expansive interpretation of “sex” and have left it to Congress to create transgender employee protections legislatively.

A case filed by a transgender male student against the Gloucester, Virginia school board over his use of the boys’ restroom, G.G. ex rel. Grimm v. Gloucester Cty. Sch. Bd., was on the trajectory to provide guidance on the issue of restroom access.  Grimm filed suit seeking to use school restrooms that aligned with his gender identity, rather than the restroom that corresponded with his birth sex.  Additional background information regarding the Grimm case can be found here.  Grimm is not a Title VII case, but concerns a different federal law, Title IX, which governs protections for students and employees in educational settings.  Although different laws, courts often look to Title VII to interpret Title IX, and, at times, vice versa.  Therefore, many predicted a decision in the Grimm case would have ripple effects into the employment arena and implications beyond restroom access issues.

However, on Monday, the Supreme Court announced it would not hear the case, and the case was sent back to the lower court.  That announcement came in the wake of a February 22, 2017 joint memorandum issued by the Department of Justice and the Department of Education, which revoked the Obama administration’s federal guidelines on transgender students’ use of restrooms.  As a result, the case law remains unsettled.  Employers should be aware of how the courts in their jurisdiction(s) interpret Title VII, as well as any state laws, regarding transgender rights and structure their policies and practices accordingly.