Federal Government Explains how NOT to Discriminate Against Transgendered People

Jill Hartley

In May 2016, the Department of Education (ED) and Department of Justice (DOJ) issued a joint letter to public school districts nationwide issuing guidance on what schools must do to accommodate transgender students. The notice, issued as a “Dear Colleague” letter, does not add requirements to applicable law; but rather, clarifies the ED and DOJ’s position regarding Title IX’s requirements as they apply to transgender students.

Under Title IX, schools which receive federal funding may not discriminate against students on the basis of sex, and may lose their funding in the event of a violation. The guidance sent out to school districts makes it clear that the departments of Justice and Education consider the word “sex” in Title IX to include gender identity. Specifically, the guidance provides that “a school must not treat a transgender student differently from the way it treats other students of the same gender identity.” For purposes of the letter, gender identity is defined as “an individual’s internal sense of gender” which “may be different from or the same as the person’s sex assigned at birth.”

Not to be left out of the discussion of transgender restroom facilities, the letter provides specific directives for school administrators on the provision of restroom and locker room facilities. The guidance requires that a student must be allowed access to a restroom on the basis of their gender identity, not on the basis of their sex assigned at birth. Further, schools may not require transgender students to use single occupancy facilities when other facilities are made available for other students. “A school may not require transgender students to use facilities inconsistent with their gender identity or to use individual-user facilities when other students are not required to do so.”

The “Dear Colleague” letter was challenged by eleven states in a May 25, 2016 lawsuit filed in a Texas federal court. The states raise procedural questions regarding the Departments’ use of the Dear Colleague letter to issue regulations or guidance without following the Administrative Procedures Act. On the merits of the issue, the states erroneously argue that “sex” under Title IX and Title VII has always referred to biological sex, and the interpretation of “sex” to include “gender identity” is a new and incorrect interpretation of the law. Indeed, while the legislation and legal battles over the rights of transgendered individuals to use facilities consistent with their gender identity are a seemingly new issue to many, the definition of “sex” in federal statutes to include gender identity is not new.

In a split decision in April 2016, the Fourth Circuit Court of Appeals reversed a district court decision which rejected a transgender high school student’s request for preliminary injunction preventing his school district from refusing to permit him to use the boys’ restroom consistent with his gender identity. The Fourth Circuit in G.G. v. Gloucester County School Board, concluded that Title IX’s provisions allowing for gender specific restrooms is ambiguous in relation to transgender students and thus deferred to the Department of Education’s interpretation which requires treatment of students consistent with their gender identity.

Even before the Fourth Circuit’s decision, however, the EEOC, consistent with Supreme Court caselaw finding gender stereotyping in employment matters unlawful, has interpreted the sex discrimination provisions of the law to prohibit discrimination on both the basis of gender identity and sexual orientation.

In published decisions involving federal employment, the EEOC has taken the position that discrimination against a transgender employee because of that person’s gender identity constitutes discrimination based on sex in violation of Title VII. For example, in Macy v. Department of Justice, EEOC Appeal No. 0120120821 (April 20, 2012), the Commission explained that allegations of gender identity discrimination are sex discrimination based on non-conformance with gender norms under the 1989 Supreme Court decision in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).

The Commission, applying that same reasoning, has over the past several years, found violations of Title VII based on an employer’s restriction on a transgender woman’s use of the common female restroom; intentional misuse of a transgender employee’s new name and pronoun; and employers’ failure to revise its records upon an employee’s change in gender identity.

Not only are federal agencies and courts consistently recognizing that sex discrimination protects transgendered employees from discrimination because of their gender identity, state law is developing in this area as well. As of January 2016, there are 20 states and over 225 jurisdictions including the District of Columbia which have passed legislation that prohibits discrimination based on gender identity in employment, housing, and/or public accommodations.

If you believe that you have been discriminated against because of your gender identity, contact the Previant Law Firm for a free consultation at (414) 240-1185.