Yesterday, the newly confirmed Education Secretary and Attorney General issued a joint letter eliminating the Obama administration’s guidance from last year addressing the issue of bathroom use by transgendered students. Specifically, the former guidance had said that schools must allow students to use the bathroom of the gender with which they identify, even if that gender is different from the students’ biological gender.
The Obama administration had decided that under Title IX, discrimination based on transgender was sex discrimination. This guidance was in line with positions taken by the EEOC pushing the issue that Title VII covered sexual orientation and gender identity discrimination because of its broad ban on sex discrimination.
Yesterday’s action only impacts public schools and not private employers. The question is whether it will have a broader impact on EEOC enforcement strategies going forward.
Of course, the Supreme Court may, sooner, rather than later, have the final say on whether Title IX prohibits discrimination based on gender identity. The Court is scheduled to hear argument in the case of Gavin Grimm v. Gloucester County School Board next month. The case could have an impact on the interpretation of Title VII, not just Title IX.
We’ll be keeping an eye on this one.