Friday, March 10, 2017

Supreme Court Declines to Provide Clarity on Transgender Restroom Access Rights

Earlier this week, the U.S. Supreme Court reversed course and sent a case that it had previously accepted for review, Gloucester County School Board v. G.G., back to the lower appellate court. The case involves the question of whether a Virginia high school must, under the anti-sex discrimination provisions of Title IX, grant a trans-male student bathroom access based on his gender identity rather than his anatomy. When the case was accepted for review by the Supreme Court, one of the legal questions up for review was whether a 2016 U.S. Department of Education (DOE) guidance document stating that Title IX prohibits transgender discrimination and requires restroom access based on gender identity was entitled to judicial deference. This guidance was issued under the Obama administration, and, under the Trump administration, was recently withdrawn. As a result, the Supreme Court remanded the Gloucester case back to the lower appellate court for further consideration.

You might ask what impact a Supreme Court ruling in the Gloucester high school case could have had on employment law. The answer is, more than you might think. The law at issue in Gloucester, Title IX of the Education Amendments Act of 1972, prohibits sex discrimination in education, while Title VII of the Civil Rights Act of 1964 prohibits sex discrimination in employment. Federal courts routinely look to Title VII cases when interpreting Title IX cases and, similarly, Title IX restroom cases can have a persuasive effect on a federal court analyzing a Title VII employment case. In addition, like the DOE had done under Title IX, the Equal Employment Opportunity Commission (EEOC) adopted the position under the Obama administration that Title VII’s “sex” discrimination prohibitions extend to transgender individuals and that workplace restroom access should be based on gender identity. Unlike the DOE, the EEOC has not issued any formal change in this position, although such a change could be forthcoming.

In the face of the recent DOE and EEOC activity related to transgender restroom rights, court battles have been and are continuing to be forged around the country on transgender restroom access rights. Because these court cases are resulting in contradictory outcomes, education institutions and employers have been closely watching the Gloucester case to see if the Supreme Court would issue a ruling providing more legal certainty. Now that the case has been remanded by the Supreme Court, employers will need to continue watching the legal developments in lower federal courts with jurisdiction over their areas of operation to determine federal law compliance obligations.

In addition, employers need to be mindful of state law requirements. Currently, a minority of states include transgender status as a protected class under state employment discrimination laws. Minnesota is among that minority. The Minnesota Human Rights Act (MHRA) expressly prohibits discrimination on the basis of gender identity, meaning one’s conformance or nonconformance to one’s sex at birth. As such, under Minnesota law, it is unlawful to discriminate against an individual or permit unlawful harassment based on transgender status.

When it comes to restroom access, however, Minnesota legal authority is mixed. In 2001, the Minnesota Supreme Court ruled that the MHRA does not require an employer to allow a transgender employee to use the restroom associated with the employee’s gender identity and may premise restroom access on anatomy. However, this case, Goins v. West Group, was issued prior to more recent EEOC efforts to expand Title VII to cover transgender discrimination. Accordingly, while Goins is still currently good law, the holding in the case could be susceptible to future challenges and legal review. Following the Goins case, a Minnesota federal district court held in 2002 that an employer that chooses to grant restroom access based on gender identity does not create an actionable hostile environment for other employees (See Cruzan v. Special School District, #1).

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