In May 2016, North Carolina governor Pat McCrory signed into law a bill (HB2) that required transgender people to use restrooms corresponding to their biological sex. On May 13, 2016, the Obama administration’s Justice Department and the Department of Education responded by sending letters to U.S. public school districts directing them to allow students to use the restrooms (and locker rooms) that matched their gender identity, even if it is different than their gender assigned at birth, and provided additional, detailed guidance on various issues including locker/bathrooms, overnight accommodations, correct gender pronouns, disclosures, and correction of records. (See https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201605-title-ix-transgender.pdf)
The letter advised school districts that it interpreted Title IX regulations to require that, when a school is notified that a “student will assert a gender identity that differs from previous records or representations, the school will begin treating the student consistent with the student’s gender identity” instead of their birth-gender. Title IX is the federal law that prohibits sex discrimination in education and education-related activities. Tying this guidance to Title IX was important because State and local rules cannot limit or override the requirements of Federal laws (34 C.F.R. § 106.6(b)) and a violation of Title IX implicates lawsuits and a threat of loss of federal aid. (34 C.F.R §§ 106.4 and 106.31(a).)
That letter was consistent with the EEOC guidelines issued a few days earlier, on May 2, 2016, titled “Bathroom Access for Transgender Employees.” The EEOCs guidelines declared that, under Title VII, employers cannot discriminate against employees on the basis of gender identity, or restrict the ability of transgender employees to use restrooms that match their gender identity, citing and adopting case law and prior EEOC decisions in which federal courts and the EEOC concluded that transgender individuals are entitled to Title VII anti-discrimination protections, and that denying a transgender employee equal access to a restroom that matches the employee’s gender identity is unlawful sex discrimination under Title VII. Neither Title VII nor Title IX expressly list “gender identity” or “transgender” as a specific protected status, but the EEOC’s position, affirmed by several court decisions, has been that “sex” includes a person’s gender identity, as opposed to the gender assigned at birth.
On Wednesday, February 22, 2017, however, the Department of Education (Sandra Battle) and Department of Justice (T.E. Wheeler, II) sent new advisory letters to public schools nationwide withdrawing and rescinding the Obama-era guidance. (http://stmedia.startribune.com/documents/1atransletterpdf022317.pdf) The February 22, 2017 letter explains that the prior guidance letter took the position that “the prohibitions on discrimination ‘on the basis of sex’ in Title IX … and its implementing regulations … require access to sex-segregated facilities based on gender identity [but] do not, however, contain extensive legal analysis or explain how the position is consistent with the express language of Title IX, nor did they undergo any formal public process.” The new letter does not say the current administration disagrees with that interpretation; instead, it just says that this is a matter of educational policy that should not be decided at the Federal level, but rather, should be determined by the State or local school district level.
The new retraction letter comes just a few weeks before the Supreme Court is set to hear the appeal of Gloucester County School Board v. G.G., a case challenging a Virginia school’s transgender bathroom policy. Last April, the Fourth Circuit Court of Appeal ruled in favor of the student, relying heavily on the now-withdrawn guidance in striking down the school board’s policy. On Thursday, February 23, 2017, the Supreme Court took note of the new guidance, and asked by way of a docket entry for the parties to submit their views on how the case should proceed in light of the February 22, 2017 guidance document. Those briefs are due March 1, 2017.
The February 22, 2017 letter declares that withdrawal of the guidance “does not leave students without protections from discrimination, bullying, or harassment.” Notably, however, the letter did not replace the Obama administration’s guidelines or provide any actual new guidance to replace the withdrawn guidance. Hopefully the Supreme Court’s decision in Gloucester County will fill the void.
Meanwhile, the EEOC has shown no sign of backing down from its stance that enforcement of LBGT rights is a “priority” for the Commission. The “EEOC interprets and enforces Title VII’s prohibition of sex discrimination as forbidding any employment discrimination based on gender identity or sexual orientation. These protections apply regardless of any contrary state or local laws.” Employers are advised not to discontinue or alter any transgender-friendly bathroom policies in response to the latest retraction of Obama-era guidance.