Bathroom Battles

By Martin Regimbal

Gender identity and the rights of transgender individuals with regard to bathroom use have been major topics of discussion nationwide for many months now and the state of the law seemingly in constant flux. In May 2016, under the Obama administration, the Department of Education and Department of Justice jointly issued a directive to schools receiving federal education funding to allow transgender students to use bathrooms and changing facilities corresponding with their gender identity, as opposed to their birth or “biological sex.” According to the agencies, Title IX, which prohibits sex discrimination in education and education-related activities but does not expressly list “gender identity” or “transgender” as protected categories, covered discrimination on the basis of gender identity. However, by August 2016, a federal district court in Texas had issued a nationwide injunction preventing the Obama administration from enforcing the directive, citing the agencies’ failure to allow a notice and comment period necessary for new regulations and holding that the plain meaning of the term “sex” as used in Title IX meant an individual’s biological sex as determined at birth. Expectedly, the DOJ appealed the decision.

The DOE and DOJ directive was also consistent with the Equal Employment Opportunity Commission’s guidance issued a few days earlier. The EEOC’s guidelines followed its position that Title VII, which prohibits sex discrimination in the workplace but also does not expressly identify “gender identity” or “transgender” as protected categories, prohibited discrimination against employees on these grounds and prohibited restrictions on the ability of transgender employees to use restrooms that match their gender identity. The guidance adopted and tracked federal court opinions and prior EEOC decisions in which the courts and the EEOC had concluded that transgender individuals are entitled to Title VII’s anti-discrimination protections, and that denying transgender employees access to a restroom that matched their gender identity is unlawful sex discrimination under Title VII.

Also in 2016, the United States Court of Appeals for the Fourth Circuit ruled on a transgender student’s challenge under Title IX to a school district’s policy barring him from using the boy’s bathroom. In finding for the student and his right to use the bathroom associated with his gender identity, the Fourth Circuit, unlike the Texas federal court, held that Title IX’s language regarding the meaning of the term sex was actually ambiguous and, therefore, that the DOE’s and DOJ’s directive was entitled to deference. That decision did not stand unchallenged for long, with the United States Supreme Court deciding in early August 2016 to stay the Fourth Circuit’s decision while it decided whether to accept an appeal of the decision from the school board.

This flurry of activity in 2016 was recently matched by actions of the Supreme Court and the Trump administration in February and March of this year. On February 10, the DOJ withdrew its appeal of the nationwide injunction issued by the Texas federal court. Less than two weeks later, the DOE and DOJ under the Trump administration jointly released a new directive, specifically eliminating the Obama administration’s directive. The new guidance, however, did not issue a new view or policy of the underlying issues; rather, it’s purpose was limited to revoking the Obama administration’s directive and indicating that individual states and local school districts have the right to create their own policies with regard to transgender bathroom use.

The Trump administration’s guidance was followed less than two weeks later by the Supreme Court announcing that it would not hear oral argument in the appeal of the Fourth Circuit case, which had been scheduled for March 28. Instead, the Supreme Court sent the case back to the Fourth Circuit for further consideration in light of the Trump administration’s elimination of the Obama administration’s guidance to which the Fourth Circuit had given deference.

Currently, 12 states are considering legislation to restrict bathrooms and changing facilities to a person’s birth sex, Alabama and Tennessee among them. However, 13 states already have passed laws providing protection to transgender students who wish to use the bathroom and changing facilities associated with their gender identity, and at least two, New York and Connecticut have already come out deriding the Trump administration’s actions. How this will continue to play out in the states is unknown, but most people are familiar with the dispute in North Carolina over the issue, that has for more than a year resulted in a contentious back and forth between the governor, the state legislature and the Charlotte city council.

But, where does all of this activity leave employers? In a state of uncertainty. Although the Trump administration’s directive leaves it to the states to adopt their own transgender bathroom policies, the directive was silent as to the EEOC’s position regarding gender identity and transgender as protected categories under Title VII. Meaning, absent withdrawal of the EEOC’s guidance or clarification of position under the Trump administration, the EEOC when investigating charges of discrimination will continue to recognize sex discrimination claims based on gender identity and transgender issues and investigate the same, and federal courts when hearing legal claims premised on such theories of sex discrimination may continue to rely on the guidance in determining whether actionable discrimination has occurred.

For employers who already implemented policies allowing bathroom use based on gender identity, the latest developments, while suggesting that the EEOC under the Trump administration may continue the rollback of the Obama administration’s position on gender identity and transgender issues, do not indicate a clear go ahead to reverse such policies. Nor do the latest developments, however, provide employers who have not yet adopted such policies with much comfort while the EEOC continues to adhere to its guidance on the issue and the federal courts potentially give them deference. While the proper bathroom policy under Title VII remains unclear, one thing is for certain, prudent employers will continue to make employment decisions based on performance and other business-related factors as opposed to sex, no matter how it is defined.

Martin J. Regimbal, Shareholder The Kullman Firm

Martin J. Regimbal, Shareholder
The Kullman Firm