In G.G. v. Gloucester County School Board, a panel of the U.S. Court of Appeals for the Fourth Circuit ruled 2-1 that the U.S. Department of Education legitimately interpreted Title IX of the Civil Rights Act of 1964 to require public schools to provide transgender students access to restrooms corresponding with their gender identity.

Does this ruling mean Title VII of Civil Rights Act—which, like Title IX, prohibits discrimination based upon “sex,” but in the context of employment—protects individuals from workplace discrimination based on their gender identity?

Not necessarily.

Whether “sex” includes gender identity for Title VII purposes might come down to how much weight courts will give to the rules and interpretations issued by U.S. Equal Employment Opportunity Commission, the administrative agency responsible for enforcing the law.

Both the EEOC and the Department of Education, which interprets and enforces Title IX, have construed the term “sex” to include gender identity. Although the Fourth Circuit deferred to the DOE’s interpretation in Gloucester, a different standard of judicial review may apply in the Title VII context, which could result in a different outcome under Title VII.

Administrative rulemaking procedures in a nutshell

If Congress enacts a statute, the courts are generally required to follow it unless it is unconstitutional. Most, if not all, federal statutes are administered by various government agencies that provide interpretations of the statutes. The Administrative Procedure Act establishes the procedures that federal administrative agencies must follow when creating rules designed to implement or interpret a statute enacted by Congress, prescribe law or policy consistent with the agency’s authority under the statute, or provide further interpretation or explanation of its own rules, among other things.

Federal agencies often use what is called “notice-and-comment rulemaking.” Very generally, this means the agency gives public notice of its proposed rule and allows an opportunity for the public to submit comments before publishing the final rule. Regulations promulgated using these procedures are considered “legislative rules” because they carry the full force and effect of law.

As most employers are aware, federal agencies also publish many interpretations of the law that do not go through the notice-and-comment rulemaking process. These “sub-regulatory” interpretations include appendices to an agency’s regulations, compliance manuals, enforcement guidance, policy statements and opinion letters. Interpretations issued without adhering to notice-and-comment protocol do not carry the force of law. They are highly influential and the courts often follow them, but only after subjecting them to a higher level of scrutiny.

Varying Degrees of Deference

Courts typically apply one of three different legal standards when determining the degree of deference to afford an agency’s interpretation of a statute or regulation. These are commonly known as the Chevron, Auer, and Skidmore standards, named after the Supreme Court cases in which they originated.

Chevron: Highest degree of deference to the agency

The Chevron standard applies when a court is reviewing regulations that were issued through notice-and-comment rulemaking. Under Chevron, the court first determines whether the statutory language is ambiguous. If the language has an unambiguous meaning, then the statutory provisions will control and the analysis ends there. If, however, the language is ambiguous, the court considers whether the agency’s interpretation is permissible or reasonable. As long as the regulation does not obviously conflict with the language of the statute and is not “unreasonable” in some other way, the agency’s interpretation is binding on the court.

Auer: Intermediate level of deference to the agency

Auer governs the level of judicial deference given to an agency’s interpretation of its own regulations. Under Auer, if the language in the regulation is ambiguous, the agency’s interpretation controls as long as it reflects the agency’s fair and considered judgment, is not a post-hoc (after-the-fact) rationalization to justify a past agency action, and is not plainly erroneous or inconsistent with the regulation. (This is the standard of review that the Fourth Circuit panel majority applied in the Gloucester case.)

Skidmore: Lowest level of deference to the agency

The Skidmore standard applies when a federal agency interprets a statute even though Congress did not delegate rulemaking authority to the agency on that subject matter. This type of agency interpretation is entitled to judicial deference only to the extent that the court finds the agency’s interpretation is “persuasive.” In determining the weight to give agency guidance under Skidmore, the court considers the thoroughness evident in the agency’s consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and other factors that give (or do not give) the agency’s interpretation the power to persuade.

Agency Deference in Gloucester County School Board

As already noted, the majority in Gloucester applied the intermediate Auer standard in reviewing the “bathroom” guidance issued by the Department of Education.

Title IX prohibits sex discrimination but allows schools to make certain distinctions based on sex. For example, the statute allows schools to provide separate living facilities “on the basis of sex.” The DOE has promulgated legislative rules, through notice-and-comment rulemaking, that allow schools to provide “separate-but-equal” toilet, locker room, and shower facilities to the sexes. More recently, though, in an opinion letter and other guidance, the DOE’s Office of Civil Rights has specified that when a school separates students by sex in these and other contexts, transgender individuals generally should be treated consistent with their gender identity. For example, a person born female who now identifies as male should be allowed to use the facilities provided for males if he prefers.

In Gloucester, the Fourth Circuit panel majority applied the Auer standard and granted controlling weight to the DOE’s interpretation of its own regulations concerning the provision of separate facilities based upon sex.

The majority first concluded that the Department’s regulations were ambiguous because they did not specify how a school should determine whether a transgender student is “male” or “female” for purposes of access to sex-segregated restrooms. Because the regulations did not address this matter, the majority analyzed the agency’s interpretation of its regulations using the factors set out in Auer.

Based on this analysis, the majority then concluded that the Department’s interpretation of how its restroom regulation should apply to transgender individuals was not plainly erroneous or inconsistent with the text of the regulations. Moreover, according to the majority, the Department’s interpretation resulted from its fair and considered judgment—that is, it did not conflict with a prior interpretation, and nothing indicated the interpretation was merely a convenient litigating position or after-the-fact justification.

Judge Paul Niemeyer wrote a strong dissent, which will be discussed in more detail below.

Would the same analysis apply to the EEOC’s interpretation of Title VII?

Title VII – the statute – prohibits workplace discrimination based on “sex,” but it does not define the term in any way, presumably because when Title VII was enacted in 1964, “sex” was viewed as the binary biological sexes of male and female.

Thus far, federal courts have generally resisted expressly ruling that “sex” under Title VII includes gender identity. However, based on a 1989 “sex stereotyping” decision from the U.S. Supreme Court (Price Waterhouse v. Hopkins), courts have begun to allow Title VII claims by transgender individuals to proceed if the evidence showed actions were taken against them for failing to conform to traditional sex stereotypes or exhibit stereotypical “male” or “female” characteristics.

In recent decisions involving federal sector employees, the EEOC has held that discrimination based upon gender identity constitutes discrimination because of sex under Title VII. Likewise, in its latest Strategic Enforcement Plan covering the years 2013 to 2016, the EEOC listed as an emerging issue the coverage of transgender individuals under Title VII’s provisions barring sex discrimination. The EEOC has also filed high-profile lawsuits against private sector employers for discrimination against transgender individuals, and obtained a significant settlement in one.

In May, the EEOC issued a “fact sheet” addressing bathroom access for transgender employees, stating that Title VII’s sex discrimination provisions require employers to allow transgender employees restroom access corresponding to their gender identity. In short, the EEOC position is consistent with the position taken by the Department of Education with respect to schools. This would seem to mean that, because the DOE’s position has been upheld, the EEOC’s position will, too.

But is that true? Congress gave the EEOC authority to issue procedural regulations regarding Title VII but did not delegate rulemaking authority on substantive matters related to the statute. Undoubtedly, the EEOC has published numerous interpretations of Title VII, including interpretive guidance, a compliance manual, and other enforcement documents and policy statements. However, the EEOC’s interpretations of substantive aspects of Title VII are arguably entitled to judicial deference only to the extent that the courts find the agency’s position to be “persuasive,” applying the least-deferential Skidmore standard.

Under a Skidmore standard, it is not clear whether courts will find the EEOC’s position on Title VII protection for transgender individuals to be “persuasive.”

Is the EEOC’s position “persuasive”?

Judge Niemeyer’s dissent in Gloucester provides some arguments that employers might use in the Title VII context to show that the EEOC’s interpretation is not entitled to judicial deference.

The first concerns the meaning of “sex” at the time that the statute was enacted. In interpreting a statute, the courts look at the common meaning of the words at the time of enactment. As Judge Niemeyer notes, dictionaries published from the time Title IX was enacted in 1972 through the present almost uniformly define “sex” in terms of the physiological distinctions between males and females, particularly with respect to their reproductive functions, and not concepts of gender identity. Title VII is eight years older than Title IX, making the argument even stronger that, for Title VII purposes, “sex” means biological sex.

Judge Niemeyer also noted that, when interpreting statutes, courts generally presume that identical words used in different parts of the same law have the same meaning throughout. The plaintiff in Gloucester challenged the meaning of the term “sex” only with regard to restroom access, where the risks to personal privacy and safety are relatively limited. However, Judge Niemeyer argued that an expanded definition of “sex” would also necessarily apply to the provisions in Title IX dealing with separate living facilities, locker rooms, and shower facilities. Allowing biological males and females to not only use the same restrooms, but also to live, change clothes and shower together, would nullify the provisions of Title IX specifically authorizing separate facilities based on sex and potentially create safety and privacy concerns that go beyond those associated with restroom use.

Employers might also argue that the EEOC’s position is inconsistent with many other laws that protect gender identity, including the Violence Against Women Act and certain executive orders and state anti-discrimination laws. In many of these laws gender identity is listed as a separate protected characteristic, in addition to sex.

Finally, the timing of the EEOC’s publication of its recent fact sheet on restroom access potentially undermines the persuasive power of the agency’s position under Skidmore. The EEOC published its fact sheet in May 2016, almost immediately after the U.S. government had become involved an array of lawsuits that challenged or defended state and municipal laws requiring restroom access to correspond with an individual’s biological sex. Thus, an employer could argue that the EEOC published its interpretation after the fact, as an attempt to substantiate its position in litigation already under way.

On the other hand, the EEOC can legitimately respond that it had an established position long before the “bathroom litigation” began – as evidenced in its Strategic Enforcement Plan, in the public sector discrimination decisions, and in its transgender lawsuits filed against private sector employers.

Conclusion

Earlier this month, the School Board’s petition for rehearing of the Gloucester appeal by the full Fourth Circuit was denied, and last week the District Court judge in Virginia who originally heard the case ordered the School Board to allow G.G. to use the restroom of the gender with which he identifies (male). Judge Niemeyer, the panel dissenter, strongly encouraged the School Board to seek review by the U.S. Supreme Court, and the School Board has indicated that it will do so. One thing is clear: even if the Gloucester decision stands, it does not necessarily mean that the definition of sex discrimination will be expanded to include gender identity for Title VII purposes.