What Bathroom Should I Use?

By: Nicole Gervase

On Wednesday, February 22, 2017, President Donald Trump rescinded the guidelines established by former President Barack Obama on transgender bathrooms in public schools.[1] The guidelines established by former President Obama encouraged public schools to let its transgender students use the bathroom that the students identified themselves with.[2] If the public schools did not cooperate with the guidelines, former President Obama threatened to withhold federal funding to the school.[3] When President Trump rescinded the guidelines, it should be noted that they were on hold by a federal judge because states and public schools should be allowed to make their own decisions without federal government interference.[4]

The Trump administration claims that the reason behind rescinding the guidelines was because they “lacked extensive legal analysis and didn’t comport with the express language of Title IX, among other purported laws.”[5] Although these guidelines only apply to public schools, the Equal Employment Opportunity Commission (hereinafter “EEOC”) has assured the work force that it will not back down in its efforts to advance transgender equality in the work place.[6] Specifically, the EEOC has fought to establish that Title VII of the Civil Rights Act of 1964 against sex discrimination in the workplace extends to transgender status and sexual orientation.[7] Although the Department of Education is limited to Title IX, the EEOC is not and claims it extends to protect those in the work place as well.[8]

Although the EEOC does agree that Title VII does not specifically include the Lesbian, Gay, Bisexual, and Transgender Community (hereinafter “LGBT Community”), it argues that Title VII is extended to the LGBT Community through case law.[9] In Macy’s v. Dep’t of Justice[10], the court held that intentional discrimination against a transgender is discrimination based on sex and therefore, violates Title VII.[11] The Court reasoned that transgender discrimination is sex discrimination because of the non-conformance with gender norms and stereotypes under Price Waterhouse v. Hopkins[12] reading of the statute.[13]

The EEOC went even further to produce a “fact sheet” for transgender employees so that they know their rights in the work place.[14] The “fact sheet” first defines “transgender” as “people whose gender identity and/or expression is different from the sex assigned to them at birth . . . .”[15] The “fact sheet” then describes employees’ rights under Title VII and that Title VII applies to federal, state, and local government agencies as employers as well as private employers with fifteen or more employees.[16] Further, transgender employees should be able to feel comfortable in the workplace and their comfort levels should not interfere with their right to work in an anti-discrimination workplace.[17]

As this ongoing problem keeps circulating, the EEOC advises employers to keep the transgender bathroom arrangements as they are so that the employer does not face private lawsuits or accidentally violate the EEOC.[18] To possibly provide some answers to this debacle, both in education and in employment, the Supreme Court of the United States will hear oral arguments on March 28, 2017 from the Gavin Grimm case.[19] Grimm, a transgender student, sued Gloucester County, Virginia’s school board for not allowing him to use the boys’ restrooms, locker rooms, and other facilities.[20]

*Editor’s Note: Since this article was written, the Supreme Court has decided not to hear the Gavin Grimm case.

[1] Daniel Trotta, Trump Revokes Obama Gudidelines on Transgender Bathrooms, Reuters (Feb. 28, 2017, 10:24 AM), http://www.reuters.com/article/us-usa-trump-lgbt-idUSKBN161243.

[2] Id.

[3] Id.

[4] Id.

[5] Vin Gurrieri, Trump’s Trans Bathroom Access U-Turn May Not Slow EEOC, Law 360 (Feb. 23, 2017, 10:42 PM), https://www.law360.com/employment/articles/895066/trump-s-trans-bathroom-access-u-turn-may-not-slow-eeoc.

[6] Id.

[7] Id.

[8] Id.

[9] What You Should Know About EEOC and the Enforcement Protections for LGBT Workers, U.S. Equal Emp. Opportunity Commission, https://www.eeoc.gov/eeoc/newsroom/wysk/enforcement_protections_lgbt_workers.cfm (last visited Feb. 28, 2017).

[10] Mia Macy, EEOC DOC 0120120821, 2012 WL 1435995 (Apr. 20, 2012)


[11] Id.

[12] Price Waterhouse v. Hopkins, 109 S. Ct. 1775 (1989).

[13] Macy’s, 2012 WL 1435995 at *6.

[14] Fact Sheet: Bathroom Access Rights for Transgender Employees Under Title VII of the Civil Rights Act of 1964, U.S. Equal Emp. Opportunity Commission, https://www.eeoc.gov/eeoc/publications/fs-bathroom-access-transgender.cfm (last visited Feb. 28, 2017).

[15] Id.

[16] Id.

[17] Id.

[18] Gurrieri, supra note 5.

[19] Id.

[20] Id.


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