Federal Departments' Withdrawal of Gender Identity Guidance Doesn’t Change EEOC's Position

Commission still considers gender identity discrimination to be illegal

Allen Smith, J.D. By Allen Smith, J.D. March 1, 2017
Federal Departments Withdrawal of Gender Identity Guidance Doesn’t Change EEOCs Position

​Even though two federal departments have rescinded guidance requiring schools to let people use bathrooms that match their gender identities, the Equal Employment Opportunity Commission (EEOC) still considers it illegal to discriminate against transgender people. 

On Feb. 22, the Department of Justice (DOJ) and Department of Education (DOE) rescinded their bathroom guidance, which was designed to instruct schools how to comply with Title IX of the Education Amendments of 1972, which prohibits sex discrimination in educational institutions that receive federal financial assistance. 

The departments did this in part to allow states to make their own decisions on the use of bathrooms by transgender people. The move came soon after Attorney General Jeff Sessions took office. The New York Times reported that Sessions wanted to roll back civil rights expansions put in place under his Democratic predecessors and to act decisively because of two pending court cases that might ultimately uphold the protections.

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Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating based on sex, among other categories. Mark Phillis, an attorney with Littler in Pittsburgh, noted that the DOJ's and DOE's rescission of their guidance doesn't change the view of the EEOC, which he anticipates will continue to be that the definition of "sex" under Title VII includes gender identity, and therefore that Title VII prohibits discrimination against transgender people.

Regardless, the EEOC may be pressured to change its position, according to Sam Schwartz-Fenwick, an attorney with Seyfarth Shaw in Chicago. "A shift in the administration's view of the breadth of one statute may foreshadow a change in its view of the other," he said. "To date, this has not yet happened."  However, he added, "The incongruity between the interpretation of Title VII and Title IX may put pressure on the administration to reverse its stance on Title VII."

However, Michelle Phillips, an attorney with Jackson Lewis in White Plains, N.Y., and Mariah McGrogan, an attorney with Jackson Lewis in Pittsburgh, cautioned in an e-mail, "While there have been a lot of rumors and leaks regarding the intentions of the Trump administration and a retraction of LGBT [lesbian, gay, bisexual and transgender] rights, the only reversals at this point concern transgender students under Title IX and not the enforcement of the sex-stereotyping cases and discrimination based on sexual orientation and gender identity under Title VII."

Rescinded Guidance

The DOE issued a Jan. 7, 2015, opinion stating that "When a school elects to separate or treat students differently on the basis of sex … a school generally must treat transgender students consistent with their gender identity." Further guidance from the DOJ and the DOE on May 13, 2016, reinforced this position, providing that schools across the country must "immediately allow students to use the bathrooms, locker rooms and showers of the student's choosing, or risk losing Title IX-linked funding."

[SHRM members-only toolkit: Employing Transgender Workers]

Texas, 12 other states (Alabama, Arizona, Georgia, Kentucky, Louisiana, Maine, Mississippi, Oklahoma, Tennessee, Utah, West Virginia, Wisconsin), and two school districts (one in Arizona and one in Texas) sued, challenging the guidance. The U.S. District Court for the Northern District of Texas on Aug. 21, 2016, granted a nationwide preliminary injunction, prohibiting enforcement of the guidance (State of Texas v. United States of America, No. 7:16-cv-00054-O (N.D. Texas 2016)). The court ruled that the DOE and the DOJ violated the Administrative Procedures Act's notice-and-comment requirements and issued directives that contradict the existing legislative and regulatory texts of Title IX.

In court, the Obama administration argued that the injunction should not apply nationwide but only in those states challenging the guidance. However, on Feb. 10, President Donald Trump's administration withdrew this motion.

On Feb. 22, the DOJ and the DOE rescinded the Jan. 7, 2015, and May 13, 2016, guidance. The departments stated in a letter, "These guidance documents do not … contain extensive legal analysis or explain how the position is consistent with the express language of Title IX, nor did they undergo any formal public process." Regulations must undergo the notice-and-comment period, while guidance does not.

The departments also noted that the withdrawn guidance has "given rise to significant litigation regarding school restrooms and locker rooms." For example, in separate litigation, the 4th U.S. Circuit Court of Appeals deferred to the 2016 guidance in a case that involved a transgender student who was rebuffed when he asked to use the bathroom aligned with his gender identity. That case is currently on the Supreme Court's docket (G.G. ex Rel. Grimm v. Gloucester Cty. Sch. Bd., 822 F.3d 709 (4th Cir. 2016)). Gavin Grimm, the transgender male student, instead was required to use unisex restrooms.

Now the Supreme Court might choose to send the G.G. case back to the lower courts for reconsideration, Phillis said. The high court on Feb. 23 asked the parties to submit their views on how the case should proceed in light of the DOJ's and the DOE's rescission of their earlier guidance. The parties must respond by March 1.

States' Role

In a letter announcing the rescission, the DOJ and DOE said "there must be due regard for the primary role of the states and local school districts in establishing educational policy." That said, the DOJ and DOE added in the letter that "This withdrawal of these guidance documents does not leave students without protections from discrimination, bullying or harassment. All schools must ensure that all students, including LGBT students, are able to learn and thrive in a safe environment."

Some state laws prohibit employment discrimination against transgender people. Phillis noted that 19 states by law (California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Jersey, New Mexico, Oregon, Rhode Island, Utah, Vermont and Washington), Washington, D.C., and one state by regulation (New York) prohibit employment discrimination against employees based on their gender identity.

Courts Ultimately Will Have to Clarify the Law

The scope of federal law regarding transgender inclusion has never been clear, Schwartz-Fenwick said. While the Obama administration took the broad view that Title IX and Title VII prohibit gender identity discrimination, that view has not been accepted by the entire judicial branch, he noted. As a result, the rescission of the Title IX guidance "adds another layer of uncertainty into an area of law that was already in flux."

"Now, more than ever, it is important for the Supreme Court to provide clarity on this issue," said Todd Solomon, an attorney with McDermott, Will & Emery in Chicago. "There is currently confusion among state legislators and the federal government regarding how to treat transgender individuals."  A decision from the Supreme Court would settle the application of Title IX to transgender students and also would provide guidance for similar issues under Title VII, he noted.

"Despite the legal turmoil, employers may still wish to implement anti-discrimination policies protecting transgender individuals. Regardless of the current administration's stance, the court system will ultimately have the final say on this issue," he said.

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