Transgender Rights and their Future

After Obergefell v. Hodges, No. 14-556, 2015 U.S. LEXIS 4250 (June 26, 2015), a landmark United States Supreme Court case which legalized gay marriage, many voices were raised concerning gender identity. In these debates, a question arose, “Can people utilize public bathrooms based on their gender identity?” Many advocates for the protection of transgender rights argue that they should be able to use public bathrooms based on their gender identity. However, many others raise concerns of privacy and security in the bathrooms.

Unfortunately, for many of the advocates for the protection of transgender rights, the majority of legal precedent today do not support their claims. Many have tried to define “sex” to include transgender people in Title VII of the Civil Rights Act of 1964 and Title IV of the Education Amendment of 1972. However, most federal and circuit courts have defined “sex” narrowly and declined to include transgender people as a protected class.

Nevertheless, there is still hope for those who fight for the rights of transgender people. Earlier this summer, the EEOC, Department of Education, and Department of Justice issued guidelines that stated that they interpreted the “sex” provision of Title VII and Title IV to include both sexual orientation and gender identity. Furthermore, the Fourth Circuit, in April, found that the term “because of sex” in Title IX was ambiguous and gave deference to an opinion letter by the Department of Education’s office of civil rights stating that Title IX provides protections for transgender students. [1]

Also, in Glenn v. Brumby, No. 10-14833, 663 F.3d 1312 (11th Cir. 2011), a male plaintiff, who identified herself as a female, sued her employer as she lost her job because of her gender identity.[2] The Eleventh Circuit Court held that a government entity cannot fire the plaintiff just because of her gender identity, as that would be violating the Equal Protection Clause.[3] The Court concluded that the Defendant’s justification of other women might object to Plaintiff’s use of restroom designated for women was not a “sufficiently important government interest.[4]

This newfound trend may have some implications to employers, especially concerning public bathrooms. Some of the big corporations, such as Target, announced that it will spend over $20 million to add on new private bathrooms to accommodate transgender people. Others have already installed LGBT-friendly policies or private bathrooms to protect themselves from discrimination lawsuits. There is evidence that this trend will grow and that federal courts will slowly move towards interpreting “sex” in a broader way. In order to anticipate and prepare for potential litigation, it is advisable that employers implement a company-wide policy protecting transgender rights. This policy may include a wide range of protections for transgender people such as designating certain bathrooms as gender-free or allowing transgender people to use bathrooms according to their gender identity. This may be hard at first, but it may slowly be accepted by society as one of the many norms employers and employees alike will learn to adapt to.

~Author: Yu Up Lee, Emory School of Law 3rd Year Law Student

[1] Natalie Rodriguez, Transgender Bathroom Battles And the Meaning Of ‘Sex’, Law 360, Sept. 2016, at 1.

[2] Glenn v. Brumby, No. 10-14833, 663 F.3d 1312, 1314 (11th Cir. 2011).

[3] Id. at 1316.

[4] Id.