Transgender Student’s Restroom Victory Has Workplace Implications

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By Kevin McGowan

The civil rights of transgender workers could be advanced following a federal appeals court decision upholding a transgender male public school student’s right to use the boys’ restroom.

The U.S. Court of Appeals for the Seventh Circuit May 30 upheld a lower court’s preliminary order that said the Kenosha, Wis., school district couldn’t bar Ashton Whitaker, a transgender male high school student, from using the boys’ bathroom ( Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. of Educ. , 2017 BL 179711, 7th Cir., No. 16-3522, 5/30/17 ). Whitaker likely would prevail on the argument that “sex” discrimination under Title IX of the Education Amendments Act includes bias based on a student’s gender identity, the court said.

The Seventh Circuit also ruled that under the equal protection clause in the U.S. Constitution’s 14th Amendment, “heightened scrutiny” applies because a public school’s bias based on gender identity is a form of sex discrimination. Kenosha probably can’t show that its reasons for barring transgender students from the bathrooms consistent with their gender identity are “exceedingly persuasive” and override the individual’s constitutional rights, the court said.

Public employers “should be very aware” that bias based on gender identity is a form of sex discrimination under the 14th Amendment, said Sarah Warbelow, legal director of the Human Rights Campaign in Washington.

There’s a “very clear, undeniable trend” in the federal courts that statutory prohibitions on sex discrimination include bias based on gender identity, Warbelow told Bloomberg BNA May 31.

The U.S. Supreme Court earlier this year was set to decide the same Title IX issue in a separate case involving a transgender male student in the Gloucester, Va., school district. But the justices sent that case back to the U.S. Court of Appeals for the Fourth Circuit after the Trump administration withdrew federal guidance that told public schools they must allow transgender students access to bathrooms, locker rooms, and other single-sex facilities consistent with their gender identities.

Taking the Lead

The Seventh Circuit is taking the lead on the issue the Supreme Court “punted,” said Michelle Phillips, an attorney with Jackson Lewis in White Plains, N.Y., who advises employers on how to accommodate transgender workers.

The full Seventh Circuit in April ruled that under Title VII of the 1964 Civil Rights Act, the ban on sex discrimination prohibits bias based on a worker’s sexual orientation. It became the first federal appeals court to rule Title VII’s sex discrimination ban covers sexual orientation bias.

The court, with its latest decision finding the school district probably violated Title IX, has “taken a historic stand,” which could greatly expand protections afforded to LGBT individuals in schools and the workplace, Phillips told Bloomberg BNA May 31.

The Seventh Circuit panel interpreting Title IX relied heavily on Title VII case law, including the U.S. Supreme Court decision in Price Waterhouse v. Coopers that said employment bias based on failure to conform with gender norms can be sex discrimination under Title VII.

Treating Whitaker differently from his public school peers because he is transgender is sex discrimination under Title IX because it punishes him for not conforming to gender norms, Judge Ann C. Williams wrote in an opinion joined by Judges Diane P. Wood and Ilana D. Rovner.

‘Groundhog Day’

The court’s decision is “Groundhog Day” because it returns to the essential question of what does “sex” mean under the federal anti-discrimination laws, said J. Randall Coffey, a partner with Fisher & Phillips in Kansas City, Mo., who represents employers.

It’s “not a terribly surprising” opinion given the Seventh Circuit’s April ruling in Hively v. Ivy Tech Community College, Coffey told Bloomberg BNA.

The “parallels” between Title IX and Title VII are “pretty significant,” so the appeals court’s reasoning in the Kenosha case has implications for private employers too, Coffey said.

The court’s ruling that Congress intended “sex” to include bias based on gender identity is “an end run around popular government,” Coffey said. The court essentially is “creating a new protected category” under Title IX and the 14th Amendment, he said.

The Supreme Court at some point will have to address what the “specific text” in Title IX and Title VII means regarding sex discrimination, Coffey said.

“We believe it’s wrongly decided,” said Gary McCaleb, senior counsel for the Alliance Defending Freedom in Scottsdale, Ariz., which participated as an amicus supporting the school district.

The Seventh Circuit “overread” Price Waterhouse, wrongly extending its statements about failure to conform to gender stereotypes, McCaleb told Bloomberg BNA May 31.

Congress meant “sex” in both Title VII and Title IX to mean male or female, not the “fluidity” of gender identity that the appeals court endorsed, McCaleb said.

To contact the reporter on this story: Kevin McGowan in Washington at kmcgowan@bna.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com; Christopher Opfer at copfer@bna.com

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