This past week has seen the filing of dueling lawsuits between the U.S. Government and the State of North Carolina concerning that state’s recently enacted “bathroom law” also known as HB2. Other states have passed or are considering passing similar laws. The U.S. Department of Justice and other opponents of these bills claim that they are discriminatory and in violation of federal law. Employers caught in the middle may be wondering whether they should follow state or federal laws concerning these matters. A recent decision from the Fourth Circuit Court of Appeal seems to lend support to the U.S. government’s position that these laws are discriminatory.
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In G.G. v. Gloucester County School Board, the Fourth Circuit held that a local school board’s “bathroom policy” requiring students to use a bathroom of their biological birth ran afoul of Title IX. Although employers may not be paying attention to this decision given that it deals with Title IX, the Court’s reasoning in the G.G. case is relevant because of the similarities in language between Title VII (which deals with employment) and Title IX (which deals with educational opportunities).
In G.G., the plaintiff student was born biologically female but was diagnosed with gender dysphoria and underwent hormone therapy. He identifies as a male. Officials at G.G.’s school were supportive of him and allowed him to use the boys’ restroom, which soon drew criticism from some in the local community. The local school board was asked to and eventually enacted a bathroom policy that required all students to use restroom facilities “corresponding [with their] biological genders” or to allow schools to provide “alternative appropriate private facilities.” G.G. argued that the new policy placed him in an untenable position by having to use the girls’ restroom since he appeared as a male and that having to use a “alternative” facility was “stigmatizing” because it treated him as being “different”. G.G. sued the school board in June 2015 and sought an injunction allowing him to use the boys’ restroom, claiming that the new policy violated Title IX.
The district court dismissed G.G.’s Title IX claim ruling that it only prohibited discrimination on the basis of sex “and not on the basis of other concepts such as gender, gender identity or sexual orientation.” As a result of this dismissal, the Court further denied G.G.’s request for a preliminary injunction. G.G. then appealed this decision to the Fourth Circuit Court of Appeals (which includes the states of Virginia and North Carolina).
The Fourth Circuit recognized that to establish a violation of Title IX, G.G. as the plaintiff had to establish “(1) that he was excluded from participation in an educational program because of his sex; (2) that the educational institution was receiving federal financial assistance at the time of his exclusion; and (3) that improper discrimination caused [him] harm.” The court recognized that Title IX allows educational institutions to make some distinctions on the basis of sex. However, the Department of Education had enacted regulations that required schools, when they decide to provide separate facilities on the basis of sex, to ensure that the facilities are “comparable to such facilities provided for students of the other sex. In January 2015, the Department issued an interpretation of the regulation in its application to transgender students and required schools to “treat transgender students consistent with their gender identity.”
G.G. argued that the Court was required to give deference to the Department of Education’s interpretation. The Court found that although the regulation “may refer unambiguously to males and females, it is silent as to how a school should determine whether a transgender individual is a male or female for the purpose of access to sex segregated restrooms.” The Court found the silence to create an ambiguity that under established law required it to give deference to the Department of Education’s interpretation unless that interpretation was “plainly erroneous,” a “convenient litigating position,” or a “post-hoc rationalization.” The Fourth Circuit rejected each of these grounds and found that the Department had exercised its fair and considered judgment interpreting Title IX and its implementing regulations to prevent discrimination on the basis of gender identity. The Fourth Circuit remanded the case back to the trial court to reconsider G.G.’s claims as well as its denial of G.G.’s requested preliminary injunction.
It remains to be seen whether the Fourth Circuit’s reasoning in the G.G. case will be followed by other circuits as well as what the trial court does with the case now that it has been remanded. However, employers are cautioned to consult with their legal counsel about the implication G.G. may have in light of the recent publicity of so-called “bathroom laws.”