Seyfarth Synopsis: The first eight months of the new administration signals a retrenchment on the executive branch’s view of legal protections due LGBT individuals, including in employment.

Recently, in a dramatic shift, the Department of Justice broke ranks with the Equal Employment Opportunity Commission, and filed an amicus brief in the Second Circuit in Zarda v. Altitude Express, Inc., No 15-3775, Dkt. #417 (S.D.N.Y. July 26, 2017). In that brief, the Department argued that, contrary to its prior position (and that of the E.E.O.C.), discrimination on the basis of sexual orientation was not prohibited under Title VII as harassment on the basis of gender. The E.E.O.C.’s longstanding position is that such discrimination is prohibited, a position that recently found support in the Seventh Circuit in Hively v. Ivy Tech, No. 15-720 (7th Cir. Apr. 4, 2017) (en banc).

There is currently a circuit split on this issue, with the Seventh Circuit finding that sexual orientation discrimination is prohibited by Title VII, and the Eleventh Circuit finding that it is not. The sudden reversal of the Department of Justice, injects further uncertainty in the already unsettled landscape of LGBT protections under Title VII. Employers can expect this uncertainty to continue until the issue is addressed by either Congress or by the Supreme Court. Employers seeking to navigate this in flux legal landscape should work closely with counsel.

In another shift on LGBT issues, in March 2017, the Administration revoked Executive Order 13673, or the “Fair Pay and Safe Workplaces Order.” Order 13673 required federal government contractors and prospective contractors to show compliance with Order 13672, an order that barred federal contractors from discriminating in employment on the bases of sexual orientation or gender identity. By revoking Order 13673, the Administration has limited the impact of Order 13672. While the nondiscrimination Order remains in place, the Order that would hold contractors accountable has been revoked. Revocation of Order 13673 has created uncertainty among federal contractors as to their responsibilities, and as to appropriate best practices. To remain compliant with Order 13672, employers should work closely with counsel.

In addition, the Administration has revoked the Department of Education issued guidance regarding transgender students. The DOE under the Obama administration stated that transgender students were protected under Title IX on the basis of gender identity. Thus, schools that did not permit transgender students to use the necessary hygienic facilities (such as bathrooms) appropriate to their gender were in violation of Title IX’s nondiscrimination provisions and risked losing federal funds.

In February 2017, the Trump Administration rescinded that guidance finding it did not “contain extensive legal analysis or explain how the position is consistent with the express language of Title IX.” Absent legal mandates to the contrary, schools can continue to offer protections to their transgender students consistent with their beliefs as to what is in the best interest of students. Schools that seek to limit bathroom access to the sex-at-birth assigned to their students will need to grapple with how they can enact and implement such a rule while still complying with the present DOE guidance which provides that LGBT students must be assured that they “are able to learn and thrive in a safe environment” and cannot be subjected to discrimination.

The Administration’s view that Title IX does not protect transgender individuals has also led it to consider making changes to Section 1557 of the Affordable Care Act, Section, the regulations containing anti-discrimination protections in the provision of healthcare. Section 1557 bars covered entities from discriminating, including barring coverage based on a transgender exclusion in a plan. Last year, a court in the Northern District of Texas placed a nationwide preliminary injunction on enforcement of the transgender related Section 1557 regulations in a suit against HHS. The current administration chose not to appeal the decision. The Department of Justice further asked the court for a remand to HSS, so that HHS could determine whether or not the regulations comported with Title IX. The court granted this remand, and HHS is currently reportedly planning a new proposed rule for that purpose.

On August 4, 2017, the Justice Department announced that it was reviewing a draft proposed rule already prepared by HHS. It is likely that the proposed rule will unwind the transgender protections of Section 1557, in whole or provide exemptions to the regulations. Healthcare providers, employers, human resources departments and benefits administrators should work closely with counsel on this rapidly changing area of the law.

In further recent action, on July 26, 2017 President Trump tweeted that he would bar transgender persons from service in the military, and thus discharge all transgender service members. While a tweet does not appear to create legal policy, the tweet, and subsequent tweets on the subject, sent strong signals regarding his intention. On August 9, 2017, two lawsuits were filed alleging that although the ban has not yet been enacted, the policy announcement itself caused harm to service members. While this policy change does not directly impact private employers it underscores the need to keep abreast of change in the law that relate to gender-identity based protections, and to consult with counsel to evaluate internal policies, practices, and procedures with an eye toward gender identity claims.

Finally, in understanding the impact of the new administration on LGBT issues, it is instructive to examine the President’s judicial appointments, especially his appointment of Neil Gorsuch to the Supreme Court. While numerous publications, including ours, have been written on Justice Gorsuch’s outlook towards LGBT individuals, his dissent in Pavan v. Smith is instructive as to his leaning in future LGBT-related cases. In Pavan, the Court held that the same-sex parents of children in the state of Arkansas may not be prohibited from being listed as legal parents on their child’s birth certificate. The Court held, per curiam, that because Arkansas already listed non-biological parents on birth certificates for non-same-sex couples, the state could not deny the same treatment to same-sex couples.

Justice Gorsuch, along with Justices Alito and Thomas, dissented in part arguing that “essentialist” biological or anatomical rationales should be the primary determining factor of parenthood, rather than adoption and other legal same-sex parenting methods. He further called into question the reach of Obergefell v. Hodges. Judge Gorsuch’s views on LGBT issues will receive attention next year when the Court addresses whether a business can refuse to provide service to a gay couple. This decision has wide ranging implications for employers and plan administrators, as it is expected to touch on the extent to which religious liberty can trump discrimination claims.

As the current administration continues to unwind regulations and legal arguments put forth by the Obama Administration, the legal landscape regarding LGBT employment issues will continue to remain in flux. Stay tuned to this blog for further analysis of subsequent developments.