Now that the Trump administration has lifted the Obama administration’s guidance directing schools to allow transgender students to use the bathroom consistent with their gender identity, employers and school administrators face a period of significant uncertainty regarding transgender individuals and their usage of public facilities. The objection to Trump’s move by state governors — some of whom announced their states would continue to follow the Obama guidance — highlights the importance of continually re-examining workplace policies and procedures to ensure compliance with local and federal law.

Without the Obama directive, it will be up to the states and school districts to interpret anti-discrimination laws and determine what kind of access transgender students will have to their restrooms. An executive order reflecting the same is expected from the Trump Administration. It is unclear at this time if this new order will simply reverse the prior guidance or provide new guidelines, but either way, the forthcoming order will have a significant impact nationwide.

Complicating matters for now, several states in disagreement with the reversal are pushing back. New York and Connecticut are prime examples — the governors of both those states have decried the Trump administration’s move and taken steps toward ensuring the rights of transgender students remain uninterrupted.

Can employers and public entities turn to the courts for guidance, then? That can get tricky, too.

Prior to the issuance of the Obama guidance, courts diverged greatly on whether discrimination on the basis of gender identity constituted discrimination on the basis of sex under Title VII and Title IX. The guidance provided persuasive authority that applied beyond the context of restrooms in schools. The Trump administration’s actions reignite questions of how Title VII and Title IX will be interpreted going forward, as these statutes do not explicitly provide protections for transgender employees or students.

Further, without the Obama guidance, it remains to be seen how the U.S. Equal Employment Opportunity Commission, the Departments of Justice and Education, and the courts will interpret the statutes to provide protections to the transgender community.

Serious questions now arise as to the applicability of one of the most high-profile cases on this issue — that of transgender high school student Gavin Grimm, who sued his school for refusing him use of the boy’s restroom. Last year, the Fourth Circuit ruled in Grimm’s favor while pointing to Obama’s guidance. The case has since been appealed by the school and is waiting to be heard by the Supreme Court in March.

One thing is certain, however: Equal protection laws that apply to the workplace and the classroom are changing. Simultaneously, the political landscape and social movements significantly impact interpretation of legal authority.

With that in mind, employers and education officials must tread carefully as they attempt to navigate the differing federal and state government positions as to transgender individuals and their usage of public facilities.

We will continue to monitor all developments on this issue and will keep you updated. For more information on the impact of these developments on your policies and procedures, please contact:

• Reshma Khanna (646.292.8765; rkhanna@goldbergsegalla.com)
• Or another member of Goldberg Segalla’s Employment and Labor Practice Group.