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. Continue Reading