UPDATE: Transgender Individuals Have Right to Choose Their Gender Appropriate Bathroom
On May 30, 2017, in Ashton Whitaker v. Kenosha Unified School District et al., the Seventh Circuit upheld a preliminary injunction requiring a Wisconsin school district to permit a trans male individual to use the men’s restroom. In so doing, the Seventh Circuit ruled that both Title IX of the Civil Rights Act, and the Equal Protection Clause, mandated that transgender students be permitted to use the bathroom of their choice. The court based its decision on the well-established precedent that federal law prohibiting discrimination based on sex, also protects individuals against discrimination for gender non-conformance. The court found that not permitting a trans individual to use the bathroom that conforms with his/her identity is discrimination on the basis of gender non-conformance.
This decision is likely to impact the Gloucester County School Board v. G.G. case (which was previously discussed in our blog post) currently pending before the Fourth Circuit. Additionally, employers should heed this warning and ensure that they are not only permitting transgender employees to utilize the restroom of their choice, but also not requiring the trans individual to comport with the gender norms of his/her sex assigned at birth.
On February 22, 2017, the Trump Administration rescinded the Obama Administration’s guidance related to transgender students’ access to bathrooms and locker room facilities that align with their gender identity, which was discussed in our September 21, 2016, blog post. Trump’s Administration stated that the Obama guidance was inconsistent with the language of Title IX and that the issue should be left to the states.
As a result of the revocation of guidance specifically at issue in that case, and despite the plaintiff’s urging to the contrary, the Supreme Court on March 6, 2017, held that the challenge in Gloucester County School Board v. G.G., (which was discussed in our September 21, 2016, blog post) was now moot and refused to hear the case any further. The Supreme Court remanded to the Fourth Circuit. On April 7, 2017, although the opinion was full of sympathy for the student, even comparing him to abolitionists and those who fought against marriage inequality and segregation, the Fourth Circuit denied the student’s request that his challenge of the school board’s bathroom rule be heard prior to graduation and repealed the order barring its enforcement. The Fourth Circuit stated that the Trump Administration’s repeal of the Obama Administration’s guidance shifted the focus to the specific wording of Title IX, rather than the issue of agency deference, which was previously at issue. This shift required repeal of the previous restraining order.
On March 3, 2017, the group of states suing the government over the Obama Administration’s guidance, which was discussed in our September 21, 2016, blog post, also dropped their lawsuit in light of the Trump Administration’s revocation of the Obama Administration’s guidance.
In a small victory for trans individuals, on March 30, 2017, North Carolina repealed its law requiring persons to use the bathroom that corresponds to their birth sex, which was discussed in our September 21, 2016, blog post. However, the law appears to only be repealed based on the NCAA’s deadline for the state to repeal the bill by March 30 or be prevented from hosting college playoff games for the next several years. Additionally, although the most controversial and publicized piece of the bill is gone, the new law prohibits municipalities from enacting nondiscrimination statutes (including against transgender people) until 2020.
Although for now it appears that transgender rights are at a standstill and that the new administration is not likely to do much to further those rights, based on the public outcry and the judge’s opinions in these cases, it seems at least possible that the tide will change sooner rather than later. Accordingly, as a best practice, employers should avoid (and not tolerate) discrimination against trans persons, particularly since case law already protects individuals from discrimination based on bucking of gender stereotypes.