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The U.S. Supreme Court on Monday remanded back to the appeals court the controversial case involving transgender students’ bathroom use, in light of changed guidance from the Departments of Education and Justice.
This means employers must do for now without clear guidance on how to deal with transgender-related issues in the workplace, says an expert.
In May, 2016, the Obama administration had issued guidance that said as a condition of receiving federal funds under Title IX of the Education Amendments of 1972, educational institutions must not discriminate on the basis of a student’s gender identity.
But on Feb. 22, the departments issued a joint memorandum that revoked the Obama administration’s federal guidelines on transgender students’ use of bathrooms.
The joint memo said the departments believe “that, in this context there must be due regard for the primary role of the states and local school districts in establishing educational policy.”
This memo was cited by the Supreme Court in returning to the 4th U.S. Circuit Court of Appeals in Richmond, Virginia, its ruling in favor of the plaintiff in Gloucester County School Board v. G.G., a case filed by Gavin Grimm, a transgender male student against the Gloucester, Virginia-based school board over his use of the boys’ bathroom. Oral arguments in the case had been scheduled for March 28.
The high court said in its summary disposition order Monday that the case was being remanded to the appeals court “for further consideration in light of the guidance document issued” by the departments.
Employers had hoped that the court’s ruling in the case would give employers clear guidance on how to deal with transgender individuals’ rights in the workplace.
Mark T. Phillis, a shareholder with Littler Mendelson P.C. in Pittsburgh, said while the Supreme Court’s order “is not an entirely surprising development” in light of the joint memo, it is disappointing from a business perspective.
“Businesses like certainty,” he said. “It looks like we’re now going to have uncertainty and potentially different rules in different parts of the country continuing.”
Legal guidance for employers on the issue of how they should deal with transgender employees in the workplace could emerge from a case now before the U.S. Supreme Court on transgender students’ bathroom use.