As we reported in an earlier blog post, employers have been keeping an eye on the ongoing political fights over the rights of transgender persons to use restrooms that correspond to their gender identities.
Yesterday, the Department of Justice (DOJ) and the Department of Education (DOE) issued a joint "Dear Colleague Letter" withdrawing two statements of policy and guidance issued by the Obama Administration relating to transgender students' access to restroom and locker room facilities. The prior guidance documents took the position that prohibitions on discrimination "on the basis of sex" under federal law governing education (Title IX), also apply to gender identity, and require schools receiving federal funds to allow transgender students to use the facilities that correspond to their gender identities. The new letter from the Trump Administration states that the prior guidance did not contain extensive legal analysis, and did not undergo a formal public comment and review process. The new letter from the DOJ and the DOE also notes that states and local school districts play a primary role in establishing educational policy.
While yesterday's news only applies specifically to schools, it may signal how the Trump Administration will view the issue of transgender bathroom access in the workplace as well. A Fact Sheet on Bathroom Access Rights for Transgender Employees Under Title VII of the Civil Rights Act of 1964 issued by the EEOC last year takes the position that gender identity is included in the protections against discrimination on the basis of sex under federal civil rights laws (Title VII). The EEOC Fact Sheet references the same Fourth Circuit case relied upon in the Obama Administration guidance that was just withdrawn. The Fact Sheet is still posted to the EEOC's website as of this writing, but this is a fluid issue, and employers will want to continue to watch for new developments.
In Massachusetts, transgender employees are protected by state law, which specifically prohibits discrimination on the basis of gender identity. As explained in a Gender Identity Guidance from the Massachusetts Commission Against Discrimination, denying an employee access to a restroom that corresponds to the employee's gender identity would constitute illegal discrimination.
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