VA student’s transgender bathroom case will not pass ‘Go’ . . . yet

by Rachael L. Loughlin

Transgender issues continue to be one of the hottest areas of the law today. Recent actions by the Trump administration backing away from the Obama administration’s forceful advocacy of transgender rights may have come as no surprise. Nonetheless, they certainly didn’t help clarify the law. In fact, if anything, the Trump administration’s backtracking has made things even more uncertain by pitting the interpretation of federal law banning sex discrimination in schools (Title IX of the Education Amendments of 1972) against federal law prohibiting sex discrimination in employment (Title VII of the Civil Rights Act of 1964) and by delaying critical guidance from the U.S. Supreme Court in a Virginia transgender student’s case.  All Gender Restroom

Issue in Grimm’s lawsuit

Gavin Grimm is a transgender student at Gloucester High School in Gloucester County. Although he is physically female, he identifies as male. Since 2015, Grimm, represented by the American Civil Liberties Union (ACLU), has been fighting for the right to use the school restroom that matches his gender identity.

The Gloucester County School Board originally allowed Grimm to use the boys’ restroom. After it received complaints and concerns from other students’ parents, the school board enacted a policy requiring students to use either single-stall facilities or the restroom that matches their physical gender.

The primary question raised by Grimm’s case is whether Title IX, the federal law barring sex-based discrimination in schools, prohibits discrimination based on a student’s gender identity and, if it does, whether that means students must be allowed to use the restroom that matches the sex with which they identify.

Litigation saga

Although this case is young in litigation terms, it has already made its way through the federal court system. Grimm’s request to use the boys’ restroom initially was denied by U.S. District Court Judge Robert G. Doumar in Norfolk. The ACLU appealed Judge Doumar’s decision to the Richmond-based U.S. 4th Circuit Court of Appeals (whose rulings apply to all Virginia employers). In a 2-1 decision, the appeals court reversed Judge Doumar’s ruling and sent the case back to his court for further proceedings.

The 4th Circuit’s decision relied heavily on a letter opinion from Obama’s Department of Education (DOE) to find that Title IX’s prohibition against sex discrimination includes discrimination based on gender identity. The school board disagreed with the 4th Circuit’s ruling and almost immediately noted its appeal of the decision to the U.S. Supreme Court. The high court agreed to hear the case, and had scheduled oral arguments for March 28.

Supreme Court decides to punt

At the beginning of March, however, the Trump administration rescinded the Obama administration’s DOE letter, which had formed the basis of the 4th Circuit’s conclusion that gender identity is included in the “sex”-based protections guaranteed by Title IX. As a result, the Supreme Court canceled oral arguments in Grimm’s lawsuit and instead issued a three-part order.

First, the Supreme Court vacated (threw out) the district court’s order prohibiting the school board from enforcing its restroom policy. Second, it nixed the 4th Circuit’s directive to the district court to follow the Obama administration’s letter for guidance in interpreting Title IX. Finally, it sent Grimm’s case back to the district court for further proceedings.

Although the case will likely end up back at the Supreme Court, the question before the Court will center on the legal interpretation of Title IX itself rather than the weight and authority courts should give a letter of guidance from the DOE.

Why Grimm’s case matters to employers

While Grimm’s case is interesting, and certainly precedent-setting in the field of education, it also has an impact on employers. The language prohibiting sex discrimination in employment in Title VII and prohibiting sex discrimination in education in Title IX is so similar that the Equal Employment Opportunity Commission (EEOC) and the courts have often interpreted the statutes similarly and have relied on court decisions related to one of the statutes to support decisions involving the other.

The EEOC interprets Title VII’s prohibitions against sex-based discrimination to include a prohibition against discrimination based on gender identity or sexual orientation. Some courts have agreed with that position; others have not. While the EEOC has shown no indication of changing its view that discrimination based on gender identity and sexual orientation is prohibited by Title VII, any interpretation the Supreme Court finally assigns to Title IX will likely have an impact on the EEOC’s position on the proper interpretation of Title VII.

Uncertainty continues

The litigation involving Grimm highlights the need to stay up to date on how courts are interpreting the antidiscrimination statutes, particularly with regard to gender identity issues. Importantly, court decisions outside the employment context, like the decisions in the Grimm litigation, can affect your legal obligations to employees.

Although Grimm’s lawsuit against the Gloucester County School Board does have an impact on employers and may help you predict trends in employment law, it obviously isn’t a case involving employment issues. Thus, it’s possible that the EEOC’s position extending Title VII protection to individuals on the basis of their gender identity or sexual orientation would stand even if the Supreme Court eventually rules against Grimm.

Given the fluid nature of the law in this area, if you are confronted with a situation involving transgender issues, it’s always wise to consult with experienced employment counsel who are up to date on the current status of the law.

Rachael L. Loughlin is an attorney with O’Hagen Meyer in Alexandria, Virginia. She may be contacted at rloughlin@ohaganmeyer.com.

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