On October 28, 2016, the Supreme Court granted the request of the School Board of Gloucester County to consider whether the Court should overturn a decision of the Fourth Circuit Court of Appeals. The Fourth Circuit ordered the School Board to allow Gavin Grimm, who was born female but identifies as male, to use the boys’ restroom during his senior year of high school.
By now, most HR professionals are aware of the ongoing debate as to what restrooms should be available to transgender individuals. Though individual cases are popping up all over the country, none has captured public attention like the case of transgender Gloucester High School student, Gavin Grimm. Grimm is being represented by the American Civil Liberties Union (ACLU), and his lawsuit contends that the School Board’s restroom policy requiring students to use the restroom matching their physical gender, is discriminatory and violates Title IX of the federal education code, which prohibits discrimination on the basis of sex.
A district court judge initially denied Grimm’s request to use the boys’ restroom, but on appeal the Fourth Circuit agreed with Grimm and held that federal education law requires the School Board to allow Grimm to use the boys’ restroom.
Although Gavin Grimm’s case arises in a school setting, its impact will be felt in any number of circumstances, including in the workplace. The Equal Employment Opportunity Commission (EEOC) already referenced the Fourth Circuit’s decision as supporting its legal position that employers must provide transgender workers access to the restroom that matches their gender identity or risk a suit for sex discrimination in violation of Title VII of the Civil Rights Act of 1964. If the Supreme Court upholds the Fourth Circuit’s ruling, therefore, the legal position of the EEOC that discrimination on the basis of gender identity is a form of sex discrimination will be significantly strengthened.
Rachael Loughlin is an attorney with O’Hagan Meyer, practicing in the firm’s Richmond, Virginia, office, and a contributor to Virginia Employment Law Letter. She may be contacted at firstname.lastname@example.org.