Supreme Court’s Action On Transgender Rights Keeps Employers Watching

by Tammy Binford, Contributing Editor

The U.S. Supreme Court’s announcement that it has decided not to hear arguments in a case regarding restroom access for transgender students doesn’t directly affect employment, but it puts employers on notice to keep up with developments that could affect the workplace.

On March 6, the Court announced that it is sending back to a lower court the case of a transgender boy suing a Virginia school district in an effort to be allowed to use the boys’ restroom. The Court had been scheduled to hear arguments in the case later this month. But on February 22, the Trump administration revoked guidelines released by the Obama administration advising public schools to allow transgender students to use the restrooms corresponding to their gender identity.

The Trump administration’s action on restroom access affects schools, not employers. So far, guidance from the Equal Employment Opportunity Commission (EEOC) and the Occupational Safety and Health Administration (OSHA) hasn’t changed. Both agencies advise employers to allow transgender employees to use the restroom corresponding to their gender identity.

Ryan Frazier, the editor of Utah Employment Law Letter and an attorney with Kirton McConkie in Salt Lake City, Utah, explained that the U.S. 4th Circuit Court of Appeals had ruled that a federal district court judge who dismissed the Virginia student’s case had ignored guidance issued by the U.S. Department of Education under the Obama administration.

The Obama administration interpreted Title IX, the law banning sex discrimination in education programs, to prohibit discrimination based on gender identity. The guidance provided protections for transgender students that allowed them to use the school restroom corresponding to their gender identity.

The school board sought Supreme Court review, but then the Trump administration rescinded the guidance to school districts. Because of the change in guidance from the administration, the Supreme Court decided not to hear the case, Frazier said.

“Employers should watch how the EEOC under the Trump administration handles transgender issues in the workplace,” Frazier said. “The EEOC under the Obama administration previously concluded that denying an employee access to a common restroom based on gender identity is sex discrimination under Title VII” of the Civil Rights Act of 1964.

Although the Virginia school case bears watching, “it is difficult to prognosticate what position the EEOC and OSHA will take,” Frazier said.

Rachael L. Loughlin, a contributor to Virginia Employment Law Letter and an attorney with O’Hagan Meyer in Richmond, Virginia, also says employers need to keep up with the issue. “While the Department of Education has withdrawn its guidance relative to Title IX, the EEOC has not yet changed its position with regard to Title VII. Though it may signal a later change, employers should still be treating all employees equally and avoiding discrimination on the basis of gender identity, sexual orientation, or any of the enumerated Title VII classes,” she said.

Charles S. Plumb, an editor of Oklahoma Employment Law Letter and attorney with McAfee & Taft in Tulsa, Oklahoma, said the school case may not signal a change for employers. “The Trump administration seems to approach transgender school bathroom issues separately from transgender employment nondiscrimination issues,” he said. “So I’m not sure there is any connection.”