In April 2016, a federal appellate court issued a ruling that had the potential to support New York gender identity employment discrimination claims under federal law. G.G. ex rel. Grimm v. Gloucester Cty. School Bd., 822 F.3d 709 (4th Cir. 2016). The court held that the federal statute addressing sex discrimination in education applied to a claim of discrimination on the basis of gender identity. Employment laws in New York City and other jurisdictions expressly prohibit gender identity and gender expression discrimination, but federal employment law does not mention it. The U.S. Supreme Court granted certiorari in the case last August. Earlier this year, it vacated the appellate court’s ruling and remanded the case, noting that the lower court’s decision relied on a federal administrative interpretation of the law that had since been revoked. The Supreme Court may still hear the case, but only after the appellate court reviews it again.
Under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., it is unlawful for employers to discriminate on the basis of sex and other factors. Several federal courts, at both the district and the appellate levels, have ruled that Title VII’s sex discrimination provisions apply to gender identity and gender expression claims. This is also the position of the Equal Employment Opportunity Commission (EEOC), based on its own rulings. The U.S. Supreme Court, however, has not ruled on this question.
The statute at issue in G.G. is Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq. Much like Title VII, Title IX’s provisions on sex discrimination make no specific mention of gender identity or gender expression. The G.G. case focused on a regulation requiring schools to provide “comparable facilities,” including restrooms, to students of different sexes. 34 C.F.R. § 106.33. In a 2015 opinion letter, the U.S. Department of Education (DOE) interpreted this rule to mean that schools must allow transgender students to use the restroom that matches their gender identity. The U.S. Department of Justice began enforcing this requirement in the same year, and the two departments issued a joint guidance document in 2016.