Supreme Court Allows Transgender Bathroom Decision to Stand

The U.S. Supreme Court let stand a decision that enabled a transgender student to use the sex-segregated bathroom that corresponded to his gender identity. Although not an employment case, transgender bathroom access is an issue of interest to employers, and this case provides some guidance on the topic.

In Gloucester County School Board v. Grimm, a transgender male student sought to use the boys’ bathrooms, while school policy would have required him to use either a single-stall bathroom or the one corresponding to his biological sex (female). The U.S. Court of Appeals for the Fourth Circuit found that the school policy constituted sex discrimination in violation of federal law, and that the student was entitled to use the bathroom that matched his gender identity.

Notably, the Fourth Circuit’s opinion is mostly consistent with the approach taken by the Equal Employment Opportunity Commission, as articulated in its recently-issued technical assistance document (TAD) on Protections against Employment Discrimination Based on Sexual Orientation or Gender Identity (as discussed in our June 16, 2021 blog post). The EEOC specifically stated that employers must allow employees to use the bathrooms and locker rooms that correspond to their gender identity. As we noted, however, the EEOC did not address the question of whether transgender employees could be required to use a single-use facility rather than a sex-segregated facility. At least in the Fourth Circuit (which includes Maryland, Virginia, West Virginia and the Carolinas), the Grimm opinion would suggest that they could not.