Trans Student Bathroom Access Reversal No Bar to High Court

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By Kevin McGowan

The Justice Department’s decision to rescind guidance regarding federal legal protections for transgender students shouldn’t deter the U.S. Supreme Court from ruling on the issue later this year, civil rights lawyers said Feb. 23.

It also doesn’t mean the Equal Employment Opportunity Commission, an independent agency, must change its position that Title VII of the 1964 Civil Rights Act prohibits workplace discrimination based on an individual’s gender identity, the rights advocates told Bloomberg BNA.

The EEOC is monitoring the DOJ developments but has no further comment, an EEOC spokeswoman said Feb. 23.

The DOJ also declined to comment Feb. 23.

The Justice and Education departments Feb. 22 issued a letter withdrawing Obama administration guidance that said public schools must allow transgender students to use the bathrooms and locker rooms consistent with their gender identities.

The prior guidance didn’t “contain sufficient legal analysis” or explain how its interpretation is consistent with Title IX of the Education Amendments of 1972, Attorney General Jeff Sessions said in a Feb. 22 statement.

Separately, the DOJ notified the Supreme Court it no longer was supporting the Education Department’s prior regulatory interpretation that Title IX requires the transgender students’ bathroom access.

Title IX Issue at High Court

Those developments shouldn’t affect the Supreme Court’s ability to decide Gloucester County School Board v. G.G., which is set for oral argument March 28, said Ezra Young, director of impact litigation for the Transgender Legal Defense and Education Fund in New York.

The Supreme Court granted review on two questions: whether courts should defer to the Education Department’s regulatory interpretation and how Title IX’s sex bias ban should be interpreted in the transgender student context, Young told Bloomberg BNA Feb. 23.

The DOJ now won’t be submitting an amicus brief for Gavin Grimm, the transgender student, but many other friends of the court will fully brief the Title IX issue, Young said.

The high court still can decide if Title IX’s sex bias ban means transgender students in public schools must be given access to bathrooms, locker rooms and other single-sex facilities corresponding with their gender identity, Young said.

The Gloucester County, Va., case is important precisely because courts traditionally interpret sex discrimination the same under Title IX and Title VII, said Shannon Minter, legal director for the National Center for Lesbian Rights in San Francisco.

A Supreme Court ruling that Title IX’s sex discrimination ban includes bias based on transgender status would mean lower courts more easily could rule Title VII prohibits workplace discrimination based on gender identity.

The high court could decide that with the issue of deference to agency regulations now moot, it should just send the Gloucester County case back to the federal appeals court, Minter told Bloomberg BNA Feb. 23.

But he’s hopeful the justices will decide the Title IX issue on the merits. The case is as potentially important for transgender people as the court’s 2015 decision on same-sex marriage was to gay and lesbian couples, Minter said.

There are “very good reasons” the Supreme Court should address the Title IX issue, said Sarah Warbelow, legal director of the Human Rights Campaign in Washington.

Five federal appeals courts, in different contexts that include the workplace, have “weighed in” on whether various federal laws banning sex discrimination reach bias against transgender people, Warbelow told Bloomberg BNA Feb. 23.

It’s the same legal issue “at its heart,” Wareblow said. It would be “very disappointing” if the Supreme Court declines to resolve how sex discrimination should be interpreted, she said.

DOJ’s Future Course Called Uncertain

The DOJ during the Obama administration filed a number of Title VII lawsuits on behalf of transgender workers alleging bias by state and local government employers, Young said.

The department could keep litigating those pending Title VII claims, Young said. It’s also an “open question” if the DOJ could file future Title VII lawsuits for transgender workers alleging workplace discrimination, he said.

The Justice and Education departments rescinded only the guidance dealing with transgender students’ bathroom access, Young said. So it’s conceivable the DOJ could continue to protect transgender workers’ rights, he said.

The DOJ still could “enforce the laws up to a point” where the bathroom access issue is presented, Young said.

Minter is skeptical the DOJ still would go to bat for transgender workers. Sessions is “a menace” to civil rights protections for LGBT individuals, Minter said.

No ‘Backsliding’ at EEOC

The EEOC isn’t “backsliding” in its efforts to protect LGBT individuals under Title VII, Young said.

A Feb. 10 brief in the U.S. Court of Appeals for the Sixth Circuit reaffirmed the EEOC’s view that Title VII’s sex bias ban necessarily prohibits discrimination based on transgender status, Young said.

The EEOC over the past few years issued “thoroughly reasoned” decisions in federal sector cases finding Title VII prohibits gender identity and sexual orientation bias, Young said.

Regardless of whether the Justice Department switches its views, the EEOC won’t overturn those agency precedents, he predicted.

It remains to be seen how the EEOC reacts when it gets a new Trump-nominated general counsel and two new commission members, Wareblow said.

But it’s “not common” for the EEOC to undo its prior administrative decisions, Warbelow said. “Something significant” in the relevant law would have to change for the EEOC to alter its Title VII interpretation, she said.

To contact the reporter on this story: Kevin McGowan in Washington at

To contact the editors responsible for this story: Peggy Aulino at; Terence Hyland at; Christopher Opfer at

For More Information

Text of the Justice and Education departments' letter is available at and the DOJ's notice to the Supreme Court is at .

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