On February 22, 2017, the Department of Justice and the Department of Education issued a “Dear Colleague” letter withdrawing the statements of policy and guidance issued by the Department of Education on January 7, 2015 and the Departments of Justice and Education on May 13, 2016. In the February 22, 2017 letter, the Office of Civil Rights division of both Departments stated that the previous guidance to schools regarding access to restrooms for transgender students was being withdrawn because of the “primary role of states and local school districts in establishing educational policy.” Further clarification by the White House Press Secretary, Sean Spicer, indicates that President Trump believes the issue of transgender access to restrooms under Title IX is a states’ rights issue and not a federal government issue. Secretary of Education, Betsy Devos, issued a statement on February 22, 2017, reiterating that the Department of Education would continue to enforce non-discrimination provisions of Title IX.
Approximately six months earlier, in a case of first impression, the Fourth Circuit Court of Appeals held a transgender student can maintain a claim under Title IX if a school refuses to give him access to the bathroom that corresponds to his gender identity. G.G. Ex. Rel. Grimm v. Gloucester Cty. School Board, No. 15-2056 (4th Cir., April 19, 2016). In so holding, the Fourth Circuit addressed the meaning of the word “sex,” stating a “hard and fast binary division on the basis of reproductive organs is not universally descriptive.” The Fourth Circuit Court of Appeals is the first federal appellate court to hold transgender students have a cause of action under Title IX if a school denies restroom access on the basis of gender identity vs. biological identity. The Fourth Circuit opinion deferred to the May 13, 2016 letter from the Departments in rendering its opinion and it is an unknown as to whether the Court would have reached the same conclusion in light of the Departments’ 2017 retraction of that guidance.
Why does this matter to employers, at least those under the Fourth Circuit’s jurisdiction, which includes South Carolina, Virginia, West Virginia, North Carolina and Maryland? The Fourth Circuit relied on definitions of “sex” under Title VII to reach its conclusion regarding the definition of “sex” not being based on biological organs. Title VII is the federal statute applicable to employers and employees, and it prohibits employers from discriminating against employees on the basis of their gender. The opinion offers insight into how the Fourth Circuit might view a decision when faced with the issue of how an employer treats transgender employees. And while this Fourth Circuit opinion is under review by the United States Supreme Court, a reversal would only pertain to the Fourth Circuit’s specific holding in the case, and would not impact the message employers can take from the opinion’s dicta regarding the definition of “sex.”
Thus, employers should continue to adopt, implement and follow gender-neutral best practices. We are often asked what this means regarding restroom access. OSHA Sanitation Standard 1910.141(c)(1)(ii) requires that employers offer toilet facilities for each sex and permit them reasonable access. OSHA issued guidance regarding the issue of transgender restroom access, recommending, among other things, single occupancy, gender neutral or multiple occupancy lockable stalls. OSHA’s core principle in its guidance was expressed: “All employees, including transgender employees, should have access to restrooms that correspond to their gender identity.” Many employers don’t have the ability to redo their facilities to accommodate the OSHA recommendation. However, actions employers can take include adopting gender neutral policies and practices, and requiring a workplace environment that is accepting and not hostile to any employee on the basis of gender identity. In today’s highly charged political climate, this can prove difficult.
 The Fourth Circuit gave the May 13, 2016 letter “controlling” deference under the doctrine of Auer v. Robbins, 519 U.S. 452 (1997).