transgender1600As I discussed in a blog last month, the Trump Administration rescinded joint Department of Justice (DOJ) and Department of Education (DOE) guidance (a “Dear Colleague” letter) that had been issued under the Obama Administration on how the agencies interpret Title IX (the non-discrimination law that applies to schools and students) in the context of bathroom use by transgender students. The guidance had stated that transgender students should be allowed to use the gender-specific bathroom consistent with their stated gender identity.  The rescission of this guidance occurred just weeks before the Supreme Court of the United States was scheduled to hear oral arguments in the Gloucester County School Board v. G.G. (Gavin Grimm) case this month.

Grimm, a transgender student, challenged his school’s bathroom policy that required him to use the bathroom of his birth sex (female).  The U.S. Court of Appeals for the Fourth Circuit gave great deference to the guidance in its ruling, which sided with Grimm.  The Gloucester County School Board sought review by the Supreme Court of two issues: (1) whether courts should extend deference to an unpublished agency letter; and (2) whether, regardless of the deference to the agency, the DOE’s interpretation of Title IX and its regulations about “generally treating transgender students consistent with their gender identity” should be given effect.

Because the Fourth Circuit had granted such deference to the DOJ and DOE guidance in its ruling, the fact that the Trump Administration withdrew the guidance caused much speculation in the legal community as to what would happen at the Supreme Court level.  The government presented its letter rescinding the DOJ and DOE guidance to the Supreme Court, and late last week, both parties informed the Court that they wanted to proceed with oral arguments and have the Court rule on whether the school board’s bathroom policy violates Title IX and its regulations.

On Monday, March 6, 2017, however, the Court decided not to hear the case at all.  In a one-sentence order, the Court kicked the case back to the Fourth Circuit for further proceedings.  Presumably, this will include a determination as to whether the school board’s policy is in violation of Title IX.

While Title IX deals with students and schools, this case is interesting from an employer standpoint, because Title IX is often subject to the same interpretations and standards as Title VII, which is the non-discrimination law that applies in the employment context.  The Supreme Court’s ruling would have given some clarity to employers on the issue of transgender rights – and whether, as argued by the Equal Employment Opportunity Commission, “sex” discrimination under Title VII (and IX) includes discrimination on the basis of transgender status.  For now, we will have to continue waiting on clarification while the EEOC continues pressing its position, and courts struggle with this issue (with some saying it is covered and some saying it’s not).

On the specific issue of transgender bathroom access, some states have introduced legislation dealing with bathroom access issues – and like the Gloucester County School Board, either prohibit or seek to prohibit bathroom use consistent with the transgender individual’s stated gender identity.  But for the moment (unless and until the Trump administration reverses the EEOC’s course), employers should keep in mind that the EEOC’s guidance on transgender bathroom usage, which is still on the EEOC’s website, says that contrary state law is not a defense to Title VII violations!