Employers Advised to Stay Up to Date on Legal Trends Affecting Transgender Rights

by Tammy Binford

The Trump administration’s action rescinding guidance to public schools on restroom policies for transgender students sends a different signal than guidance from federal agencies dealing with employment, but the real message for employers is to stay tuned.

Transgender bathroom sign

On February 22, the Trump administration revoked Obama administration guidelines that advised public schools to allow transgender students to use restrooms corresponding to their gender identity instead of their gender assigned at birth. The Trump administration’s new guidance now puts the question of restroom access on states and school districts.

The Trump administration’s action on public school restroom access doesn’t change guidance from the Equal Employment Opportunity Commission (EEOC) and the Occupational Safety and Health Administration (OSHA) that was developed during the Obama administration. Whether that guidance will change in the future is still up in the air.

The issue presents “a very sticky situation for employers,” Rachael L. Loughlin, a contributor to Virginia Employment Law Letter and an attorney with O’Hagan Meyer in Richmond, Virginia, said after news of the change in guidance broke.

Although Title VII of the Civil Rights Act of 1964 doesn’t expressly address transgender individuals, Executive Orders and other guidance suggest a broad meaning of gender in the law. “The EEOC interprets Title VII’s protections to forbid discrimination on the basis of gender identity or sexual orientation,” Loughlin said. “Employers are probably safest to assume that this interpretation carries over.”

The EEOC’s fact sheet on restroom access for transgender employees points out that the agency enforces Title VII, which prohibits employment discrimination based on race, color, national origin, religion, and sex. The EEOC considers sex to include pregnancy, gender identity, and sexual orientation. The fact sheet says state laws to the contrary are “not a defense under Title VII.”

The EEOC’s fact sheet also says, “Gender-based stereotypes, perceptions, or comfort level must not interfere with the ability of any employee to work free from discrimination.” In addition, it says the law’s protections “address conduct in the workplace, not personal beliefs. Thus, these protections do not require any employee to change beliefs.”

The EEOC’s fact sheet references OSHA’s guidance, which starts with a “core principle” that says, “All employees, including transgender employees, should have access to restrooms that correspond to their gender identity.”

In August 2016, the Obama administration’s Department of Education (DOE) issued a “Dear Colleague” letter interpreting Title IX to mean that transgender students should be allowed to use restrooms corresponding to their gender identity. A federal judge in Texas put the guidance on hold after 13 states filed suit.

On October 28, 2016, the U.S. Supreme Court agreed to consider a decision from the U.S. 4th Circuit Court of Appeals that ordered a Virginia school district to allow a student who identifies as male to use the boys’ restroom. Loughlin said a primary issue in that case­—and what the 4th Circuit relied on heavily in making its decision—is the effect of the letter from the Obama administration’s DOE, which interprets Title IX to require schools to treat students consistent with their gender identity.

The Trump administration’s withdrawal of the letter “could result in the Supreme Court sending the issue back to the lower courts for [a] decision,” Loughlin said.

The key for employers is to stay up with developments related to transgender restroom access, Loughlin said. “Employers need to be up to date on the EEOC’s interpretation of antidiscrimination statutes,” she said.

While the Virginia school case may help employers predict a trend in employment law, “it is obviously not a case about employment,” Loughlin said. “It is possible that the EEOC’s interpretation of Title VII, to include protection based on gender identity and sexual orientation, would stand despite the withdrawal of the [DOE’s] letter regarding Title IX.”

New DOE guidance

On February 22, Secretary of Education Betsy DeVos issued a statement on her department’s new guidance related to Title IX in which she said the previous administration’s guidance “has given rise to several legal questions.” She cited the federal judge’s nationwide injunction barring enforcement of the previous guidance. According to DeVos, “There is no immediate impact to students by rescinding this guidance.”

The statement from DeVos said she considers “protecting all students, including LGBTQ students, not only a key priority for the Department, but for every school in America.”

EEOC action

Whether the Trump administration will hold to previous EEOC guidance may not yet be clear, but news reports show the agency under the new administration has filed an appeal supporting a transgender woman who was fired from her job after her employer said he objected to her dressing as a woman at work.

A report in Slate says the EEOC on February 10 appealed the case to the Sixth Circuit Court of Appeals, maintaining that the firing was sex discrimination and that employer should not have a religious right to engage in such discrimination.

Tammy Binford writes and edits news alerts and newsletter articles on labor and employment law topics for BLR web and print publications. In addition, she writes for HR Hero Line and Diversity Insight, two of the ezines and blogs found on HRHero.com.

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