UPDATE: On Friday, October 28, 2016, the Supreme Court granted certiorari in the Fourth Circuit case arising out of Virginia, which was discussed in our Sept. 21, 2016 blog post.  The Fourth Circuit case related to a high school student’s ability to use the bathroom of the sex with which he identifies.  In August, the Court also stayed the Fourth Circuit’s order requiring the school to permit the student to use his preferred restroom pending resolution of the case.  Whether or not the Court’s decision to stay the Fourth Circuit’s order shows the Court’s hand remains to be seen.  Either way, a decision on this matter will have a profound effect on transgender rights and potentially employment law, as well, depending on whether the Court narrows its decision to discrimination in the context of Title IX (see our discussion of Title IX here).

Visibility of transgender persons has been heightened lately. Caitlyn Jenner received an ESPY award for her bravery in discussing trans issues, there are story lines in popular television shows like “Orange Is the New Black” highlighting transgender persons and their related struggles with civil rights, and the press has reported on boycotts related to gender-appropriate restrooms. Perhaps because of this increased visibility, people are now hotly debating what transgenderism means in the context of civil rights and privacy rights and how those rights affect employers. These are important issues that affect not only transgender persons all over the country but also employers.

On the issue of civil rights, Title VII of the Civil Rights Act (Title VII), the federal law that protects employees from discrimination, specifically names “sex” (typically referred to as one’s biological birth sex) as a category of people that should be protected against discrimination in the workplace, but does not specifically include protection for an individual’s “gender identity” (the sex with which a person identifies rather than the person’s birth sex). However, some courts have held that discrimination based on gender identity is discrimination based on sex stereotyping (which the Supreme Court has recognized as discrimination based on sex), and, thus, it is not permissible under federal law. To date, the First, Sixth, Ninth, and Eleventh Circuits and some district courts in other circuits have used this theory to hold that discrimination against transgender persons is not permissible. Likewise, several agencies, including the Equal Employment Opportunity Commission (EEOC), have issued guidance providing that discrimination based on gender identity is prohibited under the sex classification of Title VII. In addition, 21 states and the District of Columbia prohibit discrimination based on gender identity, and several municipalities have enacted legislation to protect gender identity.

The issue of privacy includes transgender persons’ access to restrooms and locker rooms that are consistent with their gender identity. Proponents of laws or policies that require individuals to use a restroom or changing area that correlates to their birth sex argue that cisgender persons (those whose sense of personal identity corresponds with the gender assigned to them at birth) have an expectation of privacy that requires others using restrooms or changing rooms to be of the same birth sex.

Just last year, North Carolina issued a law prohibiting individuals from using restrooms inapposite to their birth sex. This prompted outrage on behalf of many people, including the American Civil Liberties Union and the lesbian, gay, bisexual, and transgender (LGBT) community; in response, the federal government sued North Carolina for violation of federal discrimination laws. In another high-profile case in Virginia, the Fourth Circuit granted an injunction sought by a transgender male high school student who wanted to use the men’s restroom, finding that the definition of “sex” under Title IX (the federal education law that protects people from discrimination in education programs or activities that receive federal financial assistance) includes gender identity and protects transgender students. The EEOC, the Occupational Safety and Health Administration (OSHA) and the Department of Justice (DOJ) also agree that employees should be permitted to use the restroom for the sex with which they identify.

Texas and 12 other states joined in a lawsuit against the federal government to enjoin these regulations, and a Texas federal judge granted the injunction, holding that the regulations cannot be enforced since the agencies’ regulations are tantamount to legislation. The federal government has since requested the court’s clarification as to the breadth of its holding, which as it stands currently, could impact not only the access to restrooms but the protection of gender identity under the protected class of sex pursuant to Titles VII and IX as well. Altogether, 24 states have signed on to fight against the government’s restroom guidance protecting transgender employees, so some direction from the Supreme Court would be helpful. If the Supreme Court does rule on the issues, it could decide in a few ways:

  • uphold protections for gender identity under Title VII (and IX) and mandate that transgender persons be permitted to use the facilities for the sex with which they identify;
  • uphold protections for gender identity under Title VII (and IX) but not mandate that cisgender persons waive their right to privacy by permitting transgender persons to use the facilities for the sex with which they identify; or
  • hold that the definition of sex as it relates to Title VII (and IX) is very narrow and only relates to the birth sex of an individual, that the federal law does not protect from gender identity discrimination, and that transgender persons must use the restroom that correlates with their birth sex unless and until Congress passes a law that states otherwise.

Gender identity affects several areas in employment law, including discrimination policies, access to restrooms and changing areas, dress code policies, uniforms, health care, and stereotyping certain behavior traits or jobs. As such, court rulings and the evolution of laws on these issues will have a profound effect on employers, and it is important for employers to stay abreast of ongoing developments. BakerHostetler’s Employment Group is available to help employers strategize accordingly and help you take proactive steps to maintain compliance with the ever-changing laws on these issues.