Sarah Bryan Fask, Littler Mendelson

Federal laws including Title IX, which governs access to education, and Title VII, which concerns employment, prohibit discrimination on the basis of sex. In short, educational institutions and employers must provide equal opportunities to both men and women.

There is a split in the circuits as to whether the prohibition against discrimination on the basis of sex also includes discrimination on the basis of gender identity or expression. Even within the U.S. Court of Appeals for the Third Circuit, which has recognized claims of discrimination based on gender nonconformity as a form of sex discrimination, judges have reached differing conclusions as to whether claims of discrimination on the basis of gender identity are covered by existing law.

In 2017, it appeared that the U.S. Supreme Court might resolve this split in authority. During the Obama administration, the Department of Education issued a “Dear Colleague” letter to schools stating its positon that Title IX's prohibition against sex discrimination encompasses discrimination on the basis of gender identity. The Department of Education instructed educational institutions that they should not treat a transgender student differently from the way they treat other students with same gender identity. According to the Department of Education, “A desire to accommodate others' discomfort cannot justify a policy that singles out and disadvantages a particular class of students.”

In reliance on this memo, in G.G. v. School Board of Gloucester County, the U.S. Court of Appeals for Fourth Circuit determined that a transgender high school student could not be forced to use single-occupancy restrooms. Instead, he should be able to use any bathroom or locker facility that corresponded with his gender identity. The school board appealed to the U.S. Supreme Court, which granted certiorari. After the Supreme Court agreed to hear the case, the Trump administration revoked the Dear Colleague letter. Consequently, the Supreme Court remanded the case to the Fourth Circuit for it to reconsider the case in light of the withdrawal of the guidance on which it relied.

Where then, can employers and schools look for guidance?

Like 19 other states plus the District of Columbia, New Jersey's Law Against Discrimination explicitly prohibits discrimination on the basis of gender identity. New Jersey's law prohibits discrimination in employment, housing, public accommodations, and credit or contracting.

In Pennsylvania, the Pennsylvania Human Relations Act is like Title VII and Title IX, prohibiting discrimination based on sex. There is no express prohibition of discrimination based on gender identity or expression in employment, education, or public accommodation in Pennsylvania. The absence of a statewide law that provides express protections against discrimination based on gender identity or express has led 44 municipalities in Pennsylvania to enact their own ordinances to prohibit discrimination based on sexual orientation, gender identity or expression, or both. For example, both Philadelphia and Lower Merion Township prohibit discrimination in employment, housing, and public accommodation on the basis of sexual orientation, gender identity, and gender expression. Under these ordinances, any facility or business that solicits or accepts the patronage of the public (such as stores, restaurant, gyms, event rental spaces, stadiums, etc.) must also make accommodations to gender nonconforming individuals.

Interestingly, schools may also fall under these local laws as well. Although students are not covered explicitly by the ordinances, they may be covered if they are also employees of the school with campus jobs. Additionally, if a school offers housing to students, it cannot discriminate in housing. But, schools also have an obligation not to discriminate against members of the public. If the school invites members of the public onto its campus to use the facilities (including the gym or pool), attend enrichment classes, or hear a speaker, the school falls within the ambit of the public accommodation section of these local ordinances.

Not unsurprisingly, the case law interpreting these local ordinances is virtually nonexistent.  But, it is likely that they would be interpreted similarly to the New Jersey Law of Discrimination and the Obama-era Dear Colleague letter, to the extent that letter touches on issues of employment, housing, or public accommodations.

In the absence of case law interpreting these ordinances, where else can an employer or school district look for guidance? The Equal Employment Opportunity Commission (EEOC), the federal agency charged with enforcing Title VII, has contended that at its core, forcing a transgender individual to use a single-stall restroom or locker room or forcing the person to use restroom or locker room that does not correspond with their gender identity is a prohibited form of sex discrimination.

According to the EEOC, although a school or business may provide separate facilities for men and women, it must allow people to use such facilities consistent with their gender identity.  A school or business may, however, make individual-user options available to all individuals who voluntarily seek additional privacy.

Similarly, the Obama-era Dear Colleague letter suggests schools must allow transgender students to access housing consistent with their gender identity and may not require transgender students to stay in single-occupancy accommodations or to disclose personal information when not required of other students.

Finally, business and schools also should remember that Philadelphia has a separate ordinance requiring single-user restrooms that are open to the public to have gender-neutral signage. There is an exception for artistic signs in place before the effective date of the statute (January 2016) provided they are also accompanied by new signs indicating that the restroom may be used by any person regardless of their gender identity.

In short, employers, businesses, and even schools, within the greater Philadelphia area should remember that while there is some uncertainty as to whether federal law prohibits discrimination based on gender identity or expression, existing state laws in New Jersey and local laws in Pennsylvania provide such protections.

Sarah Bryan Fask litigates employment law and ERISA claims at Littler Mendelson in Philadelphia. Contact her at [email protected].