Executive Summary: There has been much speculation about the Trump administration’s position with respect to LGBTQ rights. We may now have our first glimpse. Just days after Jeff Sessions was confirmed as Attorney General, the government has withdrawn the motion filed by the Obama administration attempting to limit the nationwide temporary injunction blocking enforcement of the Obama administration’s executive order requiring that public schools permit students to use the bathroom consistent with their gender identity.

Background: On May 13, 2016, the Obama administration’s Department of Justice and Department of Education jointly released guidance (“the Guidance”) interpreting Title IX of the Education Amendments of 1972 (which, like Title VII of the Civil Rights Act of 1964, prohibits discrimination “because of sex”) to require public schools to allow students to use the bathroom consistent with their gender identity, not their biological sex. In a letter to schools across the United States issued that same day, the Obama administration directed schools to comply with the Guidance or risk losing Title IX federal funding.

Thirteen states and school districts responded by filing suit in the U.S. District Court for the Northern District of Texas seeking an injunction blocking the Guidance. In that case, Texas v. United States, they argued, among other things, that the plain language of Title IX and Title VII does not include “gender identity” within the definition of “sex.” The District Court agreed, issuing a nation-wide preliminary injunction on August 21, 2016, enjoining the Obama administration from enforcing the Guidance. The Obama administration appealed to the U.S. Court of Appeals for the Fifth Circuit and filed a motion with that court to limit the scope of the injunction pending appeal to only the 13 states and school districts party to the lawsuit. Oral argument was set for February 14, 2017. However, on February 10, 2017, the Trump administration withdrew the motion and cancelled oral argument, stating only that “[t]he parties are currently considering how best to proceed in this appeal.” This decision has raised red flags for civil rights groups, who fear that this is a signal of the Trump administration’s intent not to pursue LGBTQ rights issues.

The issue of bathroom equality for transgender individuals has also taken the forefront in the U.S. Supreme Court as that Court prepares to hear oral argument in Gloucester County School Board v. G.G. In that case, G.G., a transgender student, was denied access to the bathroom corresponding to his gender identity. The Fourth Circuit deferred to the Department of Education’s interpretation of sex to include gender identity, and held that a claim alleging discrimination based on gender identity is a viable claim under Title IX. Thus, whether or not the Trump administration pursues the appeal in Texas v. United States may hinge on the U.S. Supreme Court’s decision in Gloucester County.

Bottom Line: The decision of whether “sex” in Title IX includes gender identity and/or sexual orientation is likely to have a great impact on employers because the relevant language of Title VII mirrors that of Title IX. With cases interpreting both Title VII and Title IX pending now before the U.S. Supreme Court and the Second, Fifth, Seventh and Eleventh Circuits, employers will hopefully have an answer to this question soon. For a discussion of the Seventh Circuit case of Hively v. Ivy Tech Community College, please see our Alerts published on October 20, 2016, and December 12, 2016.

As these cases wind through the judicial system, employers are encouraged to formulate and/or review their own policies concerning employee bathroom use, paying close attention to any local and state laws that already prohibit discrimination based on sexual orientation and/or gender identity, or that require equal bathroom access for transgender individuals. Employers are also encouraged to review their complaint procedures, by which employees can raise concerns in the workplace, to ensure that employees have a clear method of discussing any concerns regarding discrimination, harassment and/or bathroom use.

We will continue to provide updates on pending litigation on these topics as the cases progress through the legal system and the Trump administration further defines its position on LGBTQ rights.