Supreme Court clears transgender toilet ruling to uphold
The Supreme Court of the United States let rest a move that allowed a transgender student to use the sex-separated bathroom that matched his gender identity. While not a job case, transgender toilet access is a matter of concern to employers, and this case provides some insight into the topic.
In Gloucester County School Board v. Grimm, a transgender student sought to use the boys’ washroom when school policy would have required him to use either a single-cubicle bathroom or one that matches his biological sex (female). The United States Court of Appeals for the Fourth Circuit ruled that the school’s policy constituted sex discrimination in violation of federal law and that the student had the right to use the restroom corresponding to his or her identity as a student. kind.
Notably, the opinion of the Fourth Circuit is largely in line with the approach taken by the Equal Employment Opportunities Commission, as set out in its recently published Technical Assistance Document (TAD) on Protections against discrimination in employment based on sexual orientation or gender identity (as discussed in our Blog post from June 16, 2021). The EEOC specifically said that employers must allow employees to use bathrooms and changing rooms that match their gender identity. As we noted, however, the EEOC did not address the issue of whether transgender employees might be required to use a single-use facility rather than a separate facility for sex. At least in the Fourth Circuit (which includes Maryland, Virginia, West Virginia, and the Carolinas), the Grimm opinion would suggest that they could not.