Last week, the U.S. Supreme Court accepted review of a Fourth Circuit Court of Appeals decision that could determine whether transgender status is a protected classification under federal civil rights laws. In Gloucester Sch. Bd. v. G.G., a Virginia public school district prohibited a transgender male student from using the boys bathroom while at school. He sued under Title IX, alleging that the school’s policy violates that statute’s gender discrimination requirements.
The Fourth Circuit (which includes North Carolina and South Carolina) accepted the Department of Justice’s argument that Title IX’s gender discrimination prohibitions extend to transgender status. The school district claims that schools have always had the right to establish separate restroom facilities based on biological sex. The Obama Administration has also sued North Carolina over HB2’s similar restriction of public restrooms based on biological sex.
How does this case affect employers? Title IX and Title VII share much of the same language and legislative history. A determination that Title IX protects transgender status could be read by lower federal courts to apply to employment discrimination claims brought under Title VII. This case is further complicated by the current Supreme Court vacancy. A 4-4 decision would preserve the Fourth Circuit’s determination, but would not apply outside of that appellate circuit. This means that transgender persons’ protected status could depend on where they live and work.
The case will be argued before the Court early next year, with a decision expected before the annual recess in June.