Transgender Protection for Employees

Transgender Protection for Employees

Institutions of higher education employing transgender personnel should be aware of the evolving legal framework regarding issues of access and discrimination.  Recent federal guidance may be in conflict with existing state laws governing transgender employees, or conversely, state laws may provide for additional requirements beyond the federal obligations.   

Last month, the Equal Employment Opportunity Commission (“EEOC”) issued new guidance for employers who provide bathroom access to transgender employees -- the Bathroom Access for Transgender Employees Under Title VII of the Civil Rights Act of 1964.  The Fact Sheet reiterates the federal position that Title VII prohibits employer discrimination on the basis of sex, and that the prohibition includes discrimination against transgender individuals.  In the view of the EEOC, denying an employee equal access to a common restroom which corresponds to that individual’s gender identity constitutes this type of sex discrimination. 

Consistent with recent cases before the EEOC, the Fact Sheet defines “transgender” broadly as “people whose gender identity and/or expression is different from the sex assigned to them at birth.”  Employers are forbidden from requiring their employees to provide medical proof of transgender status.

There is little doubt that the EEOC’s guidance in the Fact Sheet was issued in direct response to North Carolina’s passage of House Bill 2.  This bill overturned the city of Charlotte’s ordinance expanding bathroom access rights for transgendered employees.  House Bill 2 further required bathrooms in state agencies and public schools to be designated for use in accordance with the user’s “biological sex” – a status defined by the user’s birth certificate. 

The EEOC’s Fact Sheet specifically states that any state laws (such as North Carolina’s) that restrict bathroom access for transgendered employees are invalid.  This stance has spurred at least three separate, ongoing lawsuits.  North Carolina has sued the federal government in order to seek a declaration that its state law does not violate Title VII, Title IX of the Education Act Amendments of 1972, or the Violence Against Women Reauthorization Act (“VAWA”).  The United States, in response, has sued North Carolina and several of its state agencies, arguing that House Bill 2 does violate these federal anti-discrimination laws.  

In contrast, many other jurisdictions have already instituted expanded protections for transgender individuals.  Delaware, Maryland, Massachusetts, New Jersey, and Washington, D.C. all have laws prohibiting employment discrimination on the basis of gender identity.  Delaware, New York, and Washington, D.C. have also expanded this protection to include all public accommodations, and Massachusetts currently has a bill pending final reconciliation that would provide the same protection.  Furthermore, governors from Indiana, Kentucky, Michigan, New York, and Pennsylvania have all issued executive orders banning transgender discrimination against state workers. 

In light of the evolving status of state, local, and federal laws, institutions of higher education must examine their own policies and procedures to ensure compliance with their obligations to transgender employees.  In order to do so, a higher education institution may, among other things, do the following: include “gender identity or expression” among the list of protected categories in the institution’s non-discrimination and anti-harassment policies; institute protocols for gender transitions that clearly delineate responsibilities and expectations of transitioning employees; allow employees to be addressed by the name and pronoun that corresponds to their gender identity, upon request and regardless of a court-order name or gender change; permit employees to use sex-segregated bathroom and locker room facilities that correspond to their full-time gender presentation, regardless of what stage they are in within their overall transition process; prohibit dress codes that restrict employees’ clothing or appearance on the basis of gender; and enter into health insurance contracts that include coverage for transition-related care to employees.       

In addition, as this area of the law continues to develop and evolve, institutions must be prepared to face uncharted, factually-unique scenarios.  Appropriately navigating those situations in the context of existing guidance can be tricky.  Saul Ewing’s Higher Education Practice can provide real-time, practical guidance and solutions on how to approach each unique situation.  Feel free to contact any of the authors above or another member of the group. 

This article appears in the Summer 2016 edition of Saul Ewing’s Higher Education Highlights newsletter. Click here to see the complete newsletter.

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