Even though two federal departments have
rescinded guidance requiring schools to let people use bathrooms that match
their gender identities, the Equal Employment Opportunity Commission (EEOC)
still considers it illegal to discriminate against transgender people.
On Feb. 22, the Department of Justice (DOJ)
and Department of Education (DOE) rescinded their bathroom guidance, which was
designed to instruct schools how to comply with Title IX of the Education
Amendments of 1972, which prohibits sex discrimination in educational
institutions that receive federal financial assistance.
The departments did this in part to allow
states to make their own decisions on the use of bathrooms by transgender
people. The move came soon after Attorney General Jeff Sessions took office. The
New York Times reported that Sessions wanted to roll back civil rights expansions put in place under his
Democratic predecessors and to act decisively because of two pending court
cases that might ultimately uphold the protections.
Title VII of the Civil Rights Act of 1964
prohibits employers from discriminating based on sex, among other categories.
Mark Phillis, an attorney with Littler in Pittsburgh, noted that the DOJ’s and
DOE’s rescission of their guidance doesn’t change the view of the EEOC, which
he anticipates will continue to be that the definition of “sex” under
Title VII includes gender identity, and therefore that Title VII prohibits
discrimination against transgender people.
Regardless, the EEOC may be pressured to
change its position, according to Sam Schwartz-Fenwick, an attorney with
Seyfarth Shaw in Chicago. “A shift in the administration’s view of the
breadth of one statute may foreshadow a change in its view of the other,”
he said. “To date, this has not yet happened." However, he
added, "The incongruity between the interpretation of Title VII and Title
IX may put pressure on the administration to reverse its stance on Title
However, Michelle Phillips, an attorney with
Jackson Lewis in White Plains, N.Y., and Mariah McGrogan, an attorney with
Jackson Lewis in Pittsburgh, cautioned in an e-mail, “While there have
been a lot of rumors and leaks regarding the intentions of the Trump
administration and a retraction of LGBT [lesbian, gay, bisexual and
transgender] rights, the only reversals at this point concern transgender
students under Title IX and not the enforcement of the sex-stereotyping cases and discrimination based on sexual
orientation and gender identity under Title VII.”
The DOE issued a Jan. 7, 2015, opinion stating
that “When a school elects to separate or treat students differently on
the basis of sex … a school generally must treat transgender students
consistent with their gender identity.” Further guidance from the DOJ and
the DOE on May 13, 2016, reinforced this position, providing that schools
across the country must “immediately allow students to use the bathrooms,
locker rooms and showers of the student’s choosing, or risk losing Title
Texas, 12 other states (Alabama, Arizona,
Georgia, Kentucky, Louisiana, Maine, Mississippi, Oklahoma, Tennessee, Utah,
West Virginia, Wisconsin), and two school districts (one in Arizona and one in
Texas) sued, challenging the guidance. The U.S. District Court for the Northern
District of Texas on Aug. 21, 2016, granted a nationwide preliminary injunction,
prohibiting enforcement of the guidance (State of Texas v. United States of
America, No. 7:16-cv-00054-O (N.D. Texas 2016)). The court ruled that the
DOE and the DOJ violated the Administrative Procedures Act’s notice-and-comment
requirements and issued directives that contradict the existing legislative and
regulatory texts of Title IX.
In court, the Obama administration argued that
the injunction should not apply nationwide but only in those states challenging
the guidance. However, on Feb. 10, President Donald Trump’s administration
withdrew this motion.
On Feb. 22, the DOJ and the DOE rescinded the
Jan. 7, 2015, and May 13, 2016, guidance. The departments stated in a letter,
“These guidance documents do not … contain extensive legal analysis or
explain how the position is consistent with the express language of Title IX,
nor did they undergo any formal public process.” Regulations must undergo
the notice-and-comment period, while guidance does not.
The departments also noted that the withdrawn
guidance has “given rise to significant litigation regarding school
restrooms and locker rooms.” For example, in separate litigation, the 4th
U.S. Circuit Court of Appeals deferred to the 2016 guidance in a case that
involved a transgender student who was rebuffed when he asked to use the
bathroom aligned with his gender identity. That case is currently
on the Supreme Court’s docket (G.G. ex Rel. Grimm v. Gloucester Cty.
Sch. Bd., 822 F.3d 709 (4th Cir. 2016)). Gavin Grimm, the transgender male
student, instead was required to use unisex restrooms.
Now the Supreme Court might choose to send the
G.G. case back to the lower courts for reconsideration, Phillis said. The high
court on Feb. 23 asked the parties to submit their views on how the case should
proceed in light of the DOJ’s and the DOE’s rescission of their earlier
guidance. The parties must respond by March 1.
In a letter announcing the rescission, the DOJ
and DOE said “there must be due regard for the primary role of the states
and local school districts in establishing educational policy.” That said,
the DOJ and DOE added in the letter that “This withdrawal of these
guidance documents does not leave students without protections from
discrimination, bullying or harassment. All schools must ensure that all
students, including LGBT students, are able to learn and thrive in a safe
Some state laws prohibit employment
discrimination against transgender people. Phillis noted that 19 states by law
(California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine,
Maryland, Massachusetts, Minnesota, Nevada, New Jersey, New Mexico, Oregon, Rhode
Island, Utah, Vermont and Washington), Washington, D.C., and one state by
regulation (New York) prohibit employment discrimination against employees
based on their gender identity.
Courts Ultimately Will Have to Clarify the Law
The scope of federal law regarding transgender
inclusion has never been clear, Schwartz-Fenwick said. While the Obama
administration took the broad view that Title IX and Title VII prohibit gender
identity discrimination, that view has not been accepted by the entire judicial
branch, he noted. As a result, the rescission of the Title IX guidance
“adds another layer of uncertainty into an area of law that was already in
“Now, more than ever, it is important for
the Supreme Court to provide clarity on this issue,” said Todd Solomon, an
attorney with McDermott, Will & Emery in Chicago. “There is currently
confusion among state legislators and the federal government regarding how to
treat transgender individuals." A decision from the Supreme Court
would settle the application of Title IX to transgender students and also would
provide guidance for similar issues under Title VII, he noted.
"Despite the legal turmoil, employers may
still wish to implement anti-discrimination policies protecting transgender
individuals. Regardless of the current administration’s stance, the court
system will ultimately have the final say on this issue,” he said.
The current state of our nation’s politics is
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