Supplying "Sex Neutral" Bathroom Insufficient

The U.S. Court of Appeals for the Fourth Circuit has joined the Eleventh Circuit in ruling that prohibiting a transgender student's ability to use bathrooms that match his gender identity violate Title IX and equal protection under the U.S. Constitution.  Grimm v. Gloucester Cty. Sch. Bd., No. 19-01952 (4th Cir., 8/26/20).  The U.S. Supreme Court ruled earlier this year for LGBTQ protections in the workplace, and later the Eleventh Circuit supported a high school student who challenged the transgender bathroom ban. 

The most recent Appeals Court decision stated: "We have little difficulty holding that a bathroom policy precluding Grimm from using the boys' restrooms discriminated against him on the basis of sex."  In a dissenting opinion, a judge said the school board: "Offered its students male and female restrooms, legitimately separating them on the basis of sex," and "provided safe and private unisex restrooms that Grimm, along with all other students, could use."  

Editor's Note: Providing bathroom use matching gender identity is a sensitive issue, and many employers in the past assumed they could force such a transgender person to use a sex-neutral bathroom.  The most recent ruling again makes clear, however, that such forced use of a sex-neutral bathroom is unlawful, due to its "deeply stigmatizing and discriminatory nature."  Nevertheless, one would see little harm in providing a transgender person the option of using a sex-neutral bathroom, although an employer may not require it.  Many issues still need to be resolved, dealing not only with bathrooms, but with locker room and shower facilities.  Other pending issues pertain to dress code policies and participating in school sports.  In Connecticut, a group of high school female athletes have challenged a school policy in federal court that allows transgender women to participate in school sports, citing an unfair advantage.