Employment lawyers should watch the transgender teen case at the Supreme Court

Employment lawyers should keep an eye on Gloucester County School Board v. G.G. The US Supreme Court granted certiorari on October 28 to decide whether the federal government can require a local school district to allow a transgender teenager to use restrooms corresponding to the teenager's gender identity. [Certiorari petition] [Supreme Court briefs]

What does a transgender teen's access to boys' restrooms have to do with employment law? The government is asserting authority under Title IX, which prohibits schools that receive federal funding from discriminating on the basis of "sex." Title VII prohibits employers from discriminating on the basis of "sex." That's a pretty tight connection. Of course there are different enforcement agencies, regulations, guidances, and decisions.

Let's let the petition for certiorari give us flavor of the case:

Title IX prohibits discrimination "on the basis of sex," 20 U.S.C. § 1681(a), while its implementing regulation permits "separate toilet, locker rooms, and shower facilities on the basis of sex," if the facilities are "comparable" for students of both sexes, 34 C.F.R. § 106.33. In this case, a Department of Education official opined in an unpublished letter that Title IX's prohibition of "sex" discrimination "include[s] gender identity," and that a funding recipient providing sex-separated facilities under the regulation "must generally treat transgender students consistent with their gender identity." App. 128a, 100a. The Fourth Circuit afforded this letter "controlling" deference under the doctrine of Auer v. Robbins, 519 U.S. 452 (1997). On remand the district court entered a preliminary injunction requiring the petitioner school board to allow respondent—who was born a girl but identifies as a boy—to use the boys' restrooms at school.
The questions presented are:
1. Should this Court retain the Auer doctrine despite the objections of multiple Justices who have recently urged that it be reconsidered and overruled?
2. If Auer is retained, should deference extend to an unpublished agency letter that, among other things, does not carry the force of law and was adopted in the context of the very dispute in which deference is sought?
3. With or without deference to the agency, should the Department's specific interpretation of Title IX and 34 C.F.R. § 106.33 be given effect?

The Court granted certiorari, but limited the grant to questions 2 and 3.

In the employment arena, we have the EEOC's guidance [Fact Sheet] that "denying an employee equal access to a common restroom corresponding to the employee's gender identity is sex discrimination," and an EEOC decision (Lusardi v. McHugh) [Opinion text] that is on point.

There are already some tea leaves at the Supreme Court that one might try to read. The lower court ordered that the school board allow G.G. to use the boys' restroom, but the Supreme Court ordered that that injunction be put on hold. [Order] Three justices voted against that order. Justice Breyer voted for the order "as a courtesy." Please note that it takes 5 votes to issue a stay of a lower court order, but only 4 votes to grant certiorari. With 8 justices on the Court, a 4-4 split would result in the lower court's order being reinstated, so G.G. can win with only 4 votes. 

Expect the case to be argued early in 2018, with a decision by July.

[For recent decisions and pending employment law cases, see US Supreme Court Watch.]