Where Do We Go from Here? Bathrooms and Other Legal Developments in Transgender Issues

By Bryan Beauman & Josh Salsburey

Kentucky will soon join more than a dozen other states in a suit against the Obama Administration over the federal government’s position that schools receiving federal monies must allow access along self-selected gender lines to private dressing facilities and bathrooms.

But this growing debate concerns much more than bathrooms, and ultimately reaches many other areas in schools (such as field trips and sports teams) and the workplace (like travel arrangements and dress code policies). And of course, conversations and passions run high among students, parents and employees on both sides of this public debate. How did we get here? What does this mean to you?

For over 40 years courts uniformly defined “sex” under laws like Title IX[i] and Title VII[ii] as referring to one’s biological sex. However, in April 2014 the U.S. Department of Education (“USDOE”) issued guidelines announcing its position that Title IX’s definition of “sex” also covers sexual orientation and gender identity. Similarly, the Equal Employment Opportunity Commission (“EEOC”) announced it will enforce Title VII consistent with the position that the law covers gender identity claims. The EEOC has instituted a number of lawsuits against private employers on these bases.

On March 23, 2016, North Carolina passed legislation providing that people using public restrooms must use the restroom that corresponds with their biological sex at birth. Shortly thereafter, however, on April 19, the U.S. Court of Appeals for the Fourth Circuit (covering North Carolina as well as Maryland, Virginia, West Virginia, and South Carolina) upheld the USDOE’s interpretation of Title IX as applied to the bathroom policies of the School Board in Gloucester County, Va.

In early May 2016, the EEOC issued a Fact Sheet providing a brief overview and guidance about its position on accommodating transgender bathroom access in the workplace. On May 13, 2016, the USDOE issued a “Dear Colleague” letter on the issue of what public schools must do to accommodate transgender students in areas such as bathroom use, athletics, housing and overnight accommodations. In its Dear Colleague letter, the USDOE noted in part:

The Departments [USDOE and USDOJ] interpret Title IX to require that when a student or the student’s parent or guardian, as appropriate, notifies the school administration that the student will assert a gender identity that differs from previous representations or records, the school will begin treating the student consistent with the student’s gender identity. Under Title IX, there is no medical diagnosis or treatment requirement that students must meet as a prerequisite to being treated consistent with their gender identity.

Specific to bathrooms, the letter noted:

A School may provide separate facilities on the basis of sex, but must allow transgender students access to such facilities consistent with their gender identity. 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. A school may, however, make individual-user options available to all students who voluntarily seek additional privacy.

The USDOE’s Dear Colleague letter has been met with mixed reception. Responses range from supportive of the USDOE’s commitment to protecting student privacy and ensuring equal opportunity, to critical of the USDOE for not following the rulemaking process for adopting regulations on such a significant issue.

Gov. Matt Bevin recently announced that he will join a lawsuit filed by Texas and more than a dozen other states. Numerous other suits have been filed by parents and students in Illinois, Pennsylvania, Virginia and North Carolina. The U.S. Supreme Court has yet to weigh in on this issue. As of now, no controlling court in Kentucky has applied the federal government’s new definition of sex. But, we can predict that ruling is not far away.

Aside from the actual process used to apply the new definition of sex, many schools and employers are well aware of their duty to respect and protect all co-workers privacy and accommodate a diverse set of beliefs. And, on that point, courts again have been entirely consistent that students and employees have an expectation of privacy in those private facilities. How you balance these seemingly competing rights creates a challenge for many of our clients. Sturgill Turner is committed to helping the employment and education sectors navigate this developing area of the law in the weeks and months to come.

[i] Title IX of the Education Amendments of 1972 and related regulations prohibit discrimination on the basis of sex in educational programs or activities operated by educational institutions that receive federal financial assistance.

[ii] Title VII of the Civil Rights Act of 1964 (and Kentucky’s state law counterpart) likewise prohibits discrimination in the workplace on the basis of sex.