Monday, October 31, 2016

SCOTUS will hear transgender bathroom case

On Friday, the Supreme Court granted certiorari to hear Gloucester County School Board v. G.G. and decide these issues:
(1) Whether courts should extend deference to an unpublished agency letter that, among other things, does not carry the force of law and was adopted in the context of the very dispute in which deference is sought; and  
(2) whether, with or without deference to the agency, the Department of Education's specific interpretation of Title IX and 34 C.F.R. § 106.33, which provides that a funding recipient providing sex-separated facilities must “generally treat transgender students consistent with their gender identity,” should be given effect.
The Court will not hear a broader challenge to "Auer deference" - a doctrine of deferential judicial review of agency interpretations - which was requested by the petitioner.

Put in simpler terms: SCOTUS will decide whether schools must allow transgender students to use the bathroom that matches their gender identity regardless of physiological sex.

What's this got to do with employment law?

This case is based on Title IX. Title IX prohibits schools that receive federal funding from discriminating on the basis of "sex." Title IX's implementing regulation allows schools to provide “separate toilet, locker rooms, and shower facilities on the basis of sex.” 34 C.F.R. § 106.33. Does "sex" mean gender identity? A federal agency (Department of Education) opinion letter says yes. That's the basis for the lower court's decision that the school must allow students to use the bathroom that matches their gender identity.

Yeah, yeah, still not employment law . . . here's the tie-in: Title VII prohibits employers from discriminating on the basis of "sex." The EEOC has similarly issued guidance stating that employees must be permitted to use the "restroom corresponding to the employee's gender identity." This guidance is backed by an actual EEOC decision in Lusardi v. Dep't of the Army. Obviously, SCOTUS's interpretation of "sex" discrimination under Title IX will lend some value to interpreting "sex" discrimination under Title VII.

So, will the SCOTUS decision determine an employer's obligations to transgender employees? Not necessarily - there are subtle distinctions between Title VII and Title IX, their corresponding regulations, and agency guidance and decisions. That said, the decision will likely have a huge impact on how Title VII's prohibition of "sex" discrimination applies to transgender employees.