Earlier this month, the Trump administration withdrew the Department of Justice’s prior position that Title IX of the Civil Rights Act prohibits schools and other covered institutions from discriminating on the basis of transgender status. DOJ had taken this position in advance of a Fourth Circuit Court of Appeals decision involving a Virginia public school district that required students to use restrooms matching their biological gender. In G.G. v. Gloucester County School Board, the Fourth Circuit relied on the DOJ interpretation to find that the school’s policy violated Title IX’s prohibition against sex discrimination.
The school board appealed, and the U.S. Supreme Court accepted the case for review. Last week after the Trump administration’s reversal, the Supreme Court vacated the decision and remanded the matter to the Fourth Circuit. The Court concluded that the legal basis for the Fourth Circuit’s opinion no longer supported the decision, and that the appellate court would have to rehear the matter to determine if Title IX directly prohibits discrimination against transgender persons without deference to DOJ.
How does this decision affect employers? Title VII’s employment discrimination prohibitions share much of the same language and legislative history as Title IX. Although not identically constructed, a decision that Title IX either protects or does not protect transgender persons could have a significant impact on similar employment discrimination claims made under Title VII.
The Fourth Circuit includes North Carolina and South Carolina, and its decision on this question would provide guidance to employers in this area. Regardless of the Fourth Circuit’s decision, the matter is likely to be appealed to the Supreme Court again. The plaintiff in the Virginia case has graduated from high school, so there is a possibility that the Fourth Circuit will dismiss the claim on technical grounds. Either way, the Supreme Court will likely make the final decision on the applicability of these federal civil rights laws to transgender persons.