During the 1990s, Saturday Night Live, a popular TV sketch comedy show, featured a recurring gender-ambiguous character, Pat. The gag in Pat’s comedy sketches often involved others’ failed attempts to determine the seemingly androgynous character’s gender. The skits played off the then-prevailing view that a person’s gender falls into one of two categories: male or female. 
Society’s view of gender has evolved significantly since then. The rigid dichotomy of a two-gender world view is frequently challenged and, in some cases, rejected outright. As society’s views on gender morph, the law is attempting to keep pace.
As we discussed in an earlier blog post, whether federal law protects employees from discrimination based on their transgender status or gender identity is an open question, and the answer varies depending on the agency or branch of government involved. Recent opinions issued by federal appellate courts have only clouded the already murky legal landscape.
After the U.S. 4th Circuit Court of Appeals weighed in with a ruling in a Title IX bathroom-use lawsuit, the U.S. Supreme Court agreed to take up the issue. This article discusses the 4th Circuit case and how the Supreme Court’s ruling may have an impact on the application of Title VII of the Civil Rights Act of 1964 to discrimination against transgender employees.
Historic treatment of transgender discrimination
Few reported federal cases have addressed whether a person’s gender identity would constitute discrimination under Title VII. Gender identity is a person’s perception of his own gender. A person’s gender identity doesn’t always correspond with his sex at birth. Someone whose sense of personal gender doesn’t comport with his sex at birth is considered transgender.
Title VII doesn’t explicitly prohibit discrimination based on gender identity or transgender status. The Obama administration and the Equal Employment Opportunity Commission (EEOC) have taken the position that intentional discrimination against a transgender individual is discrimination “based on . . . sex” under Title VII. In fact, the EEOC has concluded that denying an employee access to a common restroom based on his gender identity is sex discrimination.
Federal court rulings have been inconsistent. In the earlier blog post, I explained how the 10th Circuit (whose rulings apply to Utah employers) concluded in 2007 that discrimination based on a person’s status as a “transsexual” wasn’t discrimination “because of sex” under Title VII. In that case, Etsitty v. Utah Transit Auth., the 10th Circuit ruled that Title VII doesn’t apply to discrimination based on a person’s transgender status.
Other courts haven’t followed suit. In 2008, the U.S. District Court for the District of Columbia ruled that Title VII does apply to transgender discrimination. In Schroer v. Billington, the court explained that “the Library [of Congress]’s refusal to hire [an applicant] after being advised that she planned to change her anatomical sex by undergoing sex reassignment surgery was literally discrimination ‘because of . . . sex.'”
Transgender restroom usage
In the case before the 4th Circuit, G.G. was born a biological female in 1999. At a young age, G.G. realized he didn’t feel like a girl, and he refused to wear girls’ clothing. At about the age of 12, he acknowledged his male gender identity to himself. At some point, he determined that he would present himself to the world as male, and when he was in public, he used the boys’ restroom.
G.G. notified school officials in August 2014 that he is transgender and had changed his name to a masculine name. As a transgender boy, he sought to use the boys’ restrooms at his high school. Initially, the school administration allowed him to do so. However, the Gloucester County School Board later passed a policy banning him from using the boys’ restrooms.
G.G. filed a lawsuit against the school board, claiming that it impermissibly discriminated against him in violation of Title IX and the Equal Protection Clause of the U.S. Constitution. The federal district court dismissed his Title IX claim. G.G. appealed, and in a 2-1 ruling, the 4th Circuit overturned the district court’s ruling.
Supreme Court takes the case
Essentially, the appellate court ruled that discrimination on the basis of gender identity is discrimination on the basis of “sex,” which is prohibited under Title IX. In arriving at that conclusion, the court deferred to the U.S. Department of Education’s (DOE) interpretation that the term “sex” in Title IX applies to gender identity. Accordingly, the 4th Circuit maintained that Title IX requires schools to provide transgender students access to the restrooms that are consistent with their gender identity.
In late October, the U.S. Supreme Court decided to hear the school board’s appeal. The issue before the Supreme Court is whether the DOE’s interpretation of the word “sex” in Title IX covers gender identity.
Bottom line
G.G.’s lawsuit against the Gloucester County School Board clearly isn’t an employment matter, and the Supreme Court’s ruling will apply only in Title IX cases. But the case may ultimately set the stage for battles over restroom usage by transgender employees. And it will undoubtedly have an impact on how employers must treat transgender employees.
The Supreme Court’s interpretation of the definition of “sex” under Title IX is likely to be extended to Title VII discrimination cases. Put differently, it wouldn’t be a stretch to imagine that if “sex” under Title IX extends to discrimination based on a person’s transgender status, then “sex” under Title VII likely also would extend to transgender discrimination in the workplace—particularly in light of the EEOC’s position that Title VII applies to transgender discrimination. As a result, employers will want to keep an eye on how G.G.’s lawsuit comes out.
Ryan B. Frazier is an attorney with Kirton McConkie in Salt Lake City, Utah. He may be contacted at rfrazier@kmclaw.com.