by JW Furman
With all the attention given to President Donald Trump’s recent removal of the Obama administration’s protection for transgender bathroom access, it’s important to remember that the action applies only to public school students. For employers, the issue remains as unsettled as ever.
There’s no reason to believe that the Equal Employment Opportunity Commission (EEOC) will soften its stand on any transgender issue unless it is required to by the president or the court. The EEOC is strongly committed to its enforcement of Title VII of the Civil Rights Act of 1964, which prohibits discrimination and harassment based on sex or gender. Its interpretation has long been that gender stereotyping and gender identity discrimination are prohibited by Title VII. With the support of President Barack Obama, the agency became more aggressive about advocating transgender issues, but its general philosophy and long-standing interpretation of Title VII didn’t change.
As transgender issues are decided by various courts, there will be more confusion because court decisions in one state don’t make laws for other states, just as federal district and appellate court rulings may not affect rulings in other jurisdictions. Laws and policies applicable in specific settings, like public schools, don’t necessarily apply to employers. For issues like bathroom access to be truly settled by law in all settings (i.e., schools, places of employment, public venues), we will have to wait for the U.S. Supreme Court or Congress to act. If President Trump’s opinion that the issue is best left to state and local jurisdiction (at least for public schools) is accepted, it will take even longer to see any uniformity.
Until it’s all said and done, employers will have to work with the EEOC as it protects the civil rights of transgender employees through its interpretation of the law. The EEOC is obligated to interpret and enforce the laws under its jurisdiction. Its interpretation of Title VII as it relates to gender discrimination is a liberal one. If a higher power interprets the law differently at some point, the agency will modify its enforcement policy, but probably not until then.
JW Furman is an attorney with You can reach JW Furman at 205-323-9275.