EEOC Position on Transgender Bathrooms
Even though two federal departments have rescinded guidance requiring schools to let people use bathrooms that match their gender identities, the Equal Employment Opportunity Commission (EEOC) still considers it illegal to discriminate against transgender people.
On Feb. 22, the Department of Justice (DOJ) and Department of Education (DOE) rescinded their bathroom guidance, which was designed to instruct schools how to comply with Title IX of the Education Amendments of 1972, which prohibits sex discrimination in educational institutions that receive federal financial assistance.
The departments did this in part to allow states to make their own decisions on the use of bathrooms by transgender people. The move came soon after Attorney General Jeff Sessions took office. The New York Timesreported that Sessions wanted to roll back civil rights expansions put in place under his Democratic predecessors and to act decisively because of two pending court cases that might ultimately uphold the protections.
Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating based on sex, among other categories. The DOJ’s and DOE’s rescission of their guidance doesn’t change the view of the EEOC, which will continue to be that the definition of “sex” under Title VII includes gender identity, and therefore that Title VII prohibits discrimination against transgender people.
While there have been a lot of rumors and leaks regarding the intentions of the Trump administration and a retraction of LGBT [lesbian, gay, bisexual and transgender] rights, the only reversals at this point concern transgender students under Title IX and not the enforcement of the sex-stereotyping cases and discrimination based on sexual orientation and gender identity under Title VII.
The DOE issued a Jan. 7, 2015, opinion stating that “When a school elects to separate or treat students differently on the basis of sex … a school generally must treat transgender students consistent with their gender identity.” Further guidance from the DOJ and the DOE on May 13, 2016, reinforced this position, providing thatschools across the country must “immediately allow students to use the bathrooms, locker rooms and showers of the student’s choosing, or risk losing Title IX-linked funding.”
Texas, 12 other states (Alabama, Arizona, Georgia, Kentucky, Louisiana, Maine, Mississippi, Oklahoma, Tennessee, Utah, West Virginia, Wisconsin), and two school districts (one in Arizona and one in Texas) sued, challenging the guidance. The U.S. District Court for the Northern District of Texas on Aug. 21, 2016, granted a nationwide preliminary injunction, prohibiting enforcement of the guidance (State of Texas v. United States of America, No. 7:16-cv-00054-O (N.D. Texas 2016)). The court ruled that the DOE and the DOJ violated the Administrative Procedures Act’s notice-and-comment requirements and issued directives that contradict the existing legislative and regulatory texts of Title IX.
In court, the Obama administration argued that the injunction should not apply nationwide but only in those states challenging the guidance. However, on Feb. 10, President Donald Trump’s administration withdrew this motion.
On Feb. 22, the DOJ and the DOE rescinded the Jan. 7, 2015, and May 13, 2016, guidance. The departments stated in a letter, “These guidance documents do not … contain extensive legal analysis or explain how the position is consistent with the express language of Title IX, nor did they undergo any formal public process.” Regulations must undergo the notice-and-comment period, while guidance does not.
In a letter announcing the rescission, the DOJ and DOE said “there must be due regard for the primary role of the states and local school districts in establishing educational policy.” That said, the DOJ and DOE added in the letter that “This withdrawal of these guidance documents does not leave students without protections from discrimination, bullying or harassment. All schools must ensure that all students, including LGBT students, are able to learn and thrive in a safe environment.”
Some state laws prohibit employment discrimination against transgender people. 19 states by law (California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Jersey, New Mexico, Oregon, Rhode Island, Utah, Vermont and Washington), Washington, D.C., and one state by regulation (New York) prohibit employment discrimination against employees based on their gender identity.
While the Obama administration took the broad view that Title IX and Title VII prohibit gender identity discrimination, that view has not been accepted by the entire judicial branch. The rescission of the Title IX guidance adds another layer of uncertainty into an area of law that was already unclear.
Employers may still wish to implement anti-discrimination policies protecting transgender individuals. Regardless of the current administration’s stance, the court system will ultimately have the final say on this issue.