Shifting sands: the changing landscape of transgender discrimination

Ryan B. Frazier

03.2017

Laws related to transgender discrimination are in a state of rapid flux. In the past couple of years, courts’ views on the law, particularly federal ones, have swung back and forth like a pendulum. Indeed, the interpretation of discrimination “be­cause of sex” under Title VII of the Civil Rights Act of 1964 and Title IX of the Education Amendments Act is constantly changing, which leads to confusion for educators and employ­ers. Because of that, discrimination based on gender identity has been the topic of many articles in Utah Employment Law Letter. This article discusses the recent swings of the pendulum and what the swings may mean for employers.

Transgender discrimination at the federal level

Currently, Title VII does not explicitly prohibit dis­crimination based on gender identity or a person’s transgender status. The Obama administration took the position that intentional discrimination against a transgender individual is discrimination “based on . . . sex” under Title VII. The Equal Employment Op­portunity Commission (EEOC) has taken the same posi­tion. In fact, the EEOC has concluded that denying an employee access to a common restroom because of his gender identity is sex discrimination.

Federal courts have not been consistent. Some fed­eral courts have held that Title VII prohibits discrimina­tion based on gender identity. Other courts have relied on the express language of Title VII to state that the law does not prohibit transgender discrimination.

Trump flushes restroom guidance

In May 2016, the U.S. Department of Education (DOE) issued guidance to public schools stating that under Title IX of the Education Code, transgender students should be permitted to use the restrooms that correspond with their gender identity. Schools that failed to comply with the guidance faced losing federal funding. The guidance became the cause of a federal lawsuit that was headed to the U.S. Supreme Court (discussed below). It was also the central issue in another lawsuit filed by 13 states. In that case, a federal court issued an injunction purporting to block the implementation of the guidance during the pendency of the lawsuit. On February 18, 2017, the Trump administration rescinded the guidance, indicating the issue should be left to the states to decide.

Transgender rights in the workplace

The guidance applied to public school settings, not the workplace. It appears that the rescission of the guid­ance is inconsistent with the EEOC’s recent position on discrimination “because of sex” under Title VII, which applies to employment discrimination. Questions are rampant about how the Trump administration’s actions will translate to the employment context. Some believe that the rescission of the guidance will have little im­pact on how the EEOC and the Occupational Safety and Health Administration (OSHA) approach transgen­der rights in the workplace. Notably, President Donald Trump appears to be continuing to enforce an Executive Order prohibiting federal contractors from discriminat­ing against workers based on their sexual orientation or gender identity. The order was signed by President Barack Obama in 2014.

However, if the rescission manifests the Trump ad­ministration’s attitude toward transgender issues, oth­ers fear that the EEOC and OSHA may in fact change course under President Trump. That may depend on whom President Trump ultimately appoints to take over as permanent chair of the EEOC.

Supreme Court

The Trump administration’s decision to reverse the DOE’s guidance resulted in the Supreme Court’s deci­sion not to hear the high-profile case of Grimm v. Glouces­ter County School Board. The Grimm lawsuit started when a transgender boy was not allowed to use the boys’ rest­room at school because of a school district policy requir­ing him to use the restroom that corresponded with his biological sex at birth, which was female.

Gavin Grimm filed suit against the school board on the grounds that the policy discriminated against him under the provision of Title IX that prohibits discrimi­nation “because of sex.” Specifically, he argued that the “because of sex” language of the Education Code pro­hibits discrimination against transgender individuals. The federal district court dismissed his Title IX claim.

Grimm appealed to the U.S. 4th Circuit Court of Ap­peals. In a 2-1 ruling, the appellate court overturned the district court’s decision. The court ruled that discrimina­tion based on gender identity is discrimination on the basis of “sex.” The court afforded significant deference to the DOE’s interpretation of “sex” in Title IX as includ­ing gender identity. Thus, the 4th Circuit maintained that Title IX requires schools to provide transgender stu­dents access to the restroom that is consistent with their gender identity.

The school board appealed to the Supreme Court. The Supreme Court agreed to take the case, and oral ar­guments were scheduled for March. However, because the Trump administration rescinded the DOE’s guid­ance, the Supreme Court decided it would not hear the case. Essentially, the Trump administration’s actions eliminated the basis for the 4th Circuit’s ruling.

Utah law

Although federal law on the issue is in flux, Utah law is a little clearer. In March 2015, Utah enacted legis­lation prohibiting employment and housing discrimina­tion against gays, lesbians, and transgender individuals. The law prohibits employers and labor organizations in the state from making employment decisions based on an individual’s sexual orientation or gender identity.

The state law stops short of requiring employers to allow transgender individuals to use the restroom of their choice. The law does not prohibit employers from adopting reasonable rules and policies to desig­nate gender-specific facilities such as restrooms, shower facilities, and dressing rooms. However, employers’ policies and rules relating to such facilities must reason­ably accommodate transgender employees and cannot be discriminatory. Further, the law exempts religious leaders, churches, religious schools, and other religious organizations.

Lessons learned

Atttudes toward transgender discrimination have undergone many changes in the past couple of years. Even this year, there have been significant changes re­sulting from President Trump’s decision to overturn the Obama administration’s guidance on transgender stu­dents’ restroom use in public schools. Employers need to keep their fingers on the pulse of transgender issues and the law. In light of the uncertainty in the law and Utah’s law prohibiting employment discrimination based on gender identity, the best practice is to ensure that there is no discrimination against transgender individuals in the workplace.

You can contact the author at rfrazier@kmclaw.com or 801-323-5933.