U.S. Supreme Court remands transgender bathroom case back to Fourth Circuit

By Courtney Samford

On March 6, 2017, the U.S. Supreme Court remanded a case involving a transgender high school student back to the Fourth Circuit Court of Appeals.  The case, Gloucester County School Board, Petitioner v.  G. G., By His Next Friend and Mother, Deirdre Grimm, focuses on the right of a transgender boy, Gavin Grimm, to use the bathroom that corresponds with his gender identity at his public high school.  Grimm, who was born a girl, used the boys’ restrooms with the approval of school administration until the Gloucester County School Board enacted a policy that required all students to use the bathroom that corresponded with their gender assigned at birth.

Grimm filed suit, alleging that the school board’s policy discriminated against him in violation of Title IX and the Equal Protection Clause.  The lower court dismissed Grimm’s Title IX claim.   Following an appeal, the Fourth Circuit reversed, finding that the lower court did not

Obama Administration Issues Guidance to Public Schools Regarding Transgender Access to Restrooms

By Amanda Warford Edge

On Friday, May 13th, 2016, the Obama administration issued guidance directing all public schools in the country to allow transgender students to use the bathroom that corresponds with their gender identity. This guidance was issued amidst a court fight between North Carolina and the federal government over North Carolina’s controversial House Bill 2, which bans people from using public bathrooms that do not correspond with their biological sex.

U.S. Secretary of Education John B. King, Jr. said that the guidance comes in response to schools and parents seeking direction on the issue. According to the Obama administration, the guidance ensures that all “transgender students enjoy a supportive and nondiscriminatory school environment.” The guidance also states schools cannot require transgender students to have a medical diagnosis, undergo any medical treatment, or produce a birth certificate before treating them consistently with their gender identity.

While this guidance does not have the force of law, its message was clear: gender identity is protected under Title IX as far as

OSC Finds That Army Harassed Transgender Worker

By Leila G. O’Carra

On October 23, 2014, the U.S. Office of Special Counsel announced its landmark determination that the Department of the Army engaged in gender identity discrimination against a civilian Army quality assurance specialist after she revealed her intention to transition from male to female. The Army agreed to provide remedial training on prohibited personnel practices, particularly on prohibitions against gender identity discrimination. The Army also agreed to provide workplace diversity and sensitivity training.

This finding marks the latest in a string of federal governmental actions aimed at prohibiting discrimination in the workplace on the basis of sexual orientation and gender identity.

• Last month, the Equal Employment Opportunity Commission filed two lawsuits on behalf of plaintiffs challenging transgender discrimination.   In both cases, the plaintiffs claim that their employers fired them because they were transitioning from male to female. The EEOC has previously interpreted Title VII to prohibit discrimination on the basis of transgender status, but this new litigation will be the first time that the EEOC tests its interpretation in court.
• In July 2014, President Obama signed an Executive Order prohibiting federal government contractors and subcontractors from discriminating in employment decisions on the basis of sexual orientation or gender identity.
• In April 2014, in official guidance on Title IX, the Office of Civil Rights stated that “Title IX’s sex discrimination prohibition extends to claims of discrimination based on gender identity or failure to conform to stereotypical notions of masculinity or femininity…”

Employers must understand that while sexual orientation and gender identity are not listed as protected classes in either Title VII or Title IX, the federal agencies charged with enforcing those laws interpret them to prohibit discrimination on the basis of sexual orientation and gender identity. However, employers that are “religious corporations,” and educational institutions that are “controlled by religious organizations,” may be entitled to exemptions if application of the law would be inconsistent with the religious tenets of those organizations.