As readers of our Education Law Notes blog are well aware, there has been a lot of focus on the rights of transgender students with respect to bathroom access in educational institutions under Title IX. The rights of transgender employees to utilize the bathroom matching their gender identity under Title VII, however, has received far less attention (at least in the media, as we have posted several blogs addressing same). Both Title IX and Title VII prohibit “sex” discrimination, and the ultimate issue as to whether “sex” equals “gender identity” for purposes of determining whether the denial of the right to use a bathroom matching one’s gender identity constitutes unlawful discrimination is therefore largely similar. To date, however, the Supreme Court has not addressed the question under either law.
As noted by Pullman & Comley school law attorney Michael McKeon in a recent blog post, the Supreme Court had been set to examine the subject under Title IX in the case Gloucester County School Board v. G.G., but opted to simply remand the matter back to the Fourth Circuit Court of Appeals for further consideration after the agency guidance deferred to by the Fourth Circuit was essentially rescinded after the election of President Trump. We therefore must await the Fourth Circuit’s determination, without deference to any agency interpretations, as to whether “gender identity” equals “sex” based upon the text of Title IX.
While Connecticut state law already specifically prohibits discrimination on the basis of gender identity in the workplace, the issue remains open under Title VII. The EEOC has previously concluded both that Title VII prohibits discrimination on the basis of gender identity and that prohibiting federal employees from utilizing the bathroom matching their gender identity amounts to discrimination. Last year, the District Court for the District of Connecticut concluded in Fabian v. Hosp. of Cent. Connecticut that, as a matter of first impression, discrimination on the basis of transgender identity is cognizable under Title VII as discrimination because of “sex”. While the Second Circuit Court of Appeals has not yet reached a similar conclusion and there remains a split amongst the Federal Circuit Courts of Appeals that have tackled the question, the view that Title VII prohibits discrimination on the basis of gender identity is steadily gaining judicial recognition.
If you are a Connecticut employer, the existence of a state law protecting gender identity in the workplace and the evolving judicial interpretations favoring federal protection suggest that if you do not yet have restroom policies in place, they should be on your short list of “to do” items. If you are interested in resources, in addition to the EEOC Fact Sheet on Bathroom Access, OSHA has produced simple and straightforward guidance suggesting that employees should have access to the restroom that corresponds to his or her gender identity. The OSHA guidance also suggests providing employees with alternatives including the option to use either the restroom associated with their gender identity or single occupancy gender neutral restrooms and/or multiple occupancy gender neutral restrooms with lockable single occupancy stalls.