As soon as Friday, the justices of the Supreme Court could decide if they will hear the appeal in a critical case about whether Gavin Grimm, a transgender male student, can be barred in his Virginia school district from using the boys restroom.
The justices first considered whether to take the case on Oct. 14, but took no action, leaving LGBT advocates — and Grimm — in waiting.
The case in question concerns Gloucester County School Board, an Education Department policy, and the widely covered issue of transgender people and bathrooms. But the underlying question of whether existing law — specifically, sex-discrimination bans — protects against gender identity-based discrimination has been moving forward in the courts and administrative agencies for years now.
As the election season clock ticks down to election day, the legal fight over transgender protections is reaching a crescendo. During the Obama administration, officials have undertaken a revolutionary application of those existing laws to affirm the rights of transgender individuals, spurring a rapid shift within the federal government as the culture, too, changes. Meanwhile, as the petition pends before the Supreme Court, there were three federal district court actions on transgender rights this past week alone — one of which led the Justice Department on Thursday afternoon to announce that it will be taking the matter to a federal appeals court.
What is going on?
It is a “legal correction,” Chai Feldblum says of the move to recognize protections for transgender people under sex discrimination laws.
Feldblum is the first out lesbian commissioner of the Equal Employment Opportunity Commission (EEOC), nominated to the five-member board in President Barack Obama’s first year in office. She has advanced the effort to protect transgender people — as well as lesbian, gay, and bisexual people — from discrimination under existing civil rights laws.
The story of how Grimm’s case reached the justices is, in many ways, the story of Feldblum’s work over the past five years — and of the fight taken up by a woman named Mia Macy.
In October 2011, Alex Pacheco was fighting a discrimination case against Freedom Buick GMC Truck in Texas. Pacheco — a transgender woman — claimed that she had been fired from her job after she asked to begin presenting at work as a woman.
The truck dealership argued that Pacheco couldn’t claim that the company had violated the law — even if it had discriminated against her. The dealership argued that Title VII of the Civil Rights Act of 1964 simply doesn’t protect transgender people from discrimination.
Pacheco, however, received some unexpected support in her case: The EEOC weighed in on her behalf.
Five years ago this week, the federal commission submitted in a court filing for the first time that “disparate treatment of an employee because he or she is transgender is discrimination ‘because of … sex’ under Title VII.” The short filing in a federal court in Western Texas went mostly unremarked upon at the time — and, ultimately, was never accepted for filing because the court took the action the EEOC was seeking without even needing to consider the commission’s brief. The dealership later settled the case with Pacheco, ending the legal fight before it went any further.
It was, however, the beginning of a tectonic shift at the independent agency that has propelled civil rights law for LGBT people since.
A month later, the 11th Circuit Court of Appeals in Atlanta issued a significant opinion in a case brought by Vandy Beth Glenn, a transgender woman who was fired from her editor’s job with an office of the Georgia General Assembly, she alleged, because she was transgender.
“An individual cannot be punished because of his or her perceived gender-nonconformity. Because these protections are afforded to everyone, they cannot be denied to a transgender individual,” Judge Rosemary Barkett wrote for the court. “The nature of the discrimination is the same; it may differ in degree but not in kind, and discrimination on this basis is a form of sex-based discrimination that is subject to heightened scrutiny under the Equal Protection Clause.”
While echoing some other appeals courts in recent years, these moves approached but did not reach the result Feldblum — a former Georgetown law professor — was seeking: full coverage of all anti-transgender discrimination under existing law.
Instead, the brief and the decision explained how a 1989 Supreme Court case about sex stereotyping — Price Waterhouse v. Hopkins — meant that anti-transgender discrimination was covered under Title VII when the plaintiff could show that the discrimination resulted from a type of sex stereotyping.
“It really just used where the courts had gone up to that point,” Feldblum said of the Pacheco brief. “It was not a statement of per se coverage” — she said of the complete coverage she saw appropriate for all gender identity-based discrimination under current sex discrimination bans. “[T]he commission,” she said, “was well-situated to deliver [that statement].”
Soon enough, the EEOC was given the chance to do just that. The opportunity arose when a transgender woman claiming she was discriminated against in her attempt to work for the Bureau of Alcohol, Tobacco, Firearms, and Explosives was told she could not bring a claim under Title VII, because she is transgender. The woman was Mia Macy, and she asked the EEOC to review the denial.
“I didn’t know the legal wording that would be later used, but I knew it was wrong,” Macy told BuzzFeed News of the experience of having her job offer rescinded once an ATF lab learned of her transition.
“I had spent my life as a cop, defending the law, early on in the military … always doing everything that you’re supposed to do, and then, here’s a person who tells me, ‘I think you were discriminated against, but what you were discriminated against isn’t covered,’” she said of the initial rejection of her case by the agency.
It was hard for her to find a lawyer to take on the case, she said, with many of the leading LGBT legal groups turning her down. She eventually found the Transgender Law Center — a relatively small organization — willing to take her case.
The EEOC agreed to review the agency’s rejection of her complaint, and its new approach to these cases exploded into public view in April 2012 — when the commission ruled in favor of Macy. The bipartisan commission unanimously decided that Macy should be permitted to make a case that she was discriminated against in hiring by the ATF because she was transgender.
“[T]he Commission hereby clarifies that claims of discrimination based on transgender status, also referred to as claims of discrimination based on gender identity, are cognizable under Title VII’s sex discrimination prohibition,” the decision stated — a reversal of the agency’s prior policy.
“The legal overreach happened when the EEOC and the courts … carved out, essentially, an LGBT exception to sex discrimination law.”
The decision meant that all federal employees could bring workplace discrimination claims using this interpretation. It also meant that the EEOC would use that understanding of the law in its field offices, which are responsible for investigating all private workplace discrimination complaints. Now transgender people could bring discrimination complaints because of alleged anti-transgender discrimination. It was, as reported at the time, a transgender breakthrough.
“The federal sector opinions,” Feldblum explained of cases like Macy’s that result from federal employees’ discrimination complaints, “became the vehicle for analyzing that issue in-depth and writing what I certainly hoped was a persuasive opinion explaining why the gender stereotyping theory translated into per se coverage for gender identity discrimination in every case — without having to bring up specific examples of the employer believing the person violated some gender stereotype.”
The EEOC’s moves, along with support from a handful of court rulings, would press the Obama administration itself forward on transgender issues — or, in some cases, provide further backing for moves that agencies seemed interested in making on LGBT rights.
“I don’t think that I anticipated … what other agencies would do and how quickly they would do it,” Feldblum said of the effect of the Macy ruling. “I certainly was aware of the potential breadth of the protection because of the hundreds of laws that prohibit discrimination based on sex that are implemented by lots of federal agencies.”
The Department of Health and Human Services adopted the Macy ruling, she said, “even way before they issued their regulations” implementing the Affordable Care Act.
The next summer, the Department of Education and Justice Department reached a settlement with the Arcadia Unified School District in California in a complaint brought by a transgender student. Although the settlement made clear the decision could not be considered a departmental policy, it laid out a view of the law that echoed — and cited — the Macy decision. Over the next years, Education began a series of steps that moved toward a policy of enforcing Title IX of the Education Amendments of 1972 to protect transgender students from discrimination.
Education wasn’t alone. The Justice Department, in addition to signing off on the Arcadia settlement, also — as the department responsible for ATF — made a final decision in favor of Macy in her complaint, concluding that “the ATF discriminated against [Macy] based on her transgender status, and thus her sex,” and finding that discrimination violated Title VII.
By 2014, several agencies — including the Office of Personnel Management and the Department of Housing and Urban Development — had adopted the Macy definition of sex discrimination as including anti-transgender discrimination.
The Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) was one of the later agencies to adopt the Macy reasoning — in connection with its enforcement of the executive order that bans federal contractors from discriminating. The adoption of Macy mattered because, although advocates had been pressing Obama to sign an executive order providing specific LGBT protections for the millions of employees of federal contractors, senior White House officials had informed the advocates weeks before the Macy decision that the the order was not happening at that time.
Advocates thought that a longstanding agreement between the EEOC and the OFCCP to coordinate the enforcement efforts of Title VII and the executive order meant the OFCCP would quickly apply Macy. Nonetheless, it took more than two years before the agency did so. Even then, the decision came a day after Obama announced that he would be issuing the executive order specifically barring sexual orientation and gender identity-based discrimination by federal contractors.
"I would not be concerned at all if they take the case. I think this needs to go to the Supreme Court."
In the time since, both the Justice and Education departments expanded their application of the Macy reasoning even further to include their enforcement of civil rights laws — an incredibly significant shift that has led to many of the current court fights over transgender rights.
The Justice Department announced in December 2014 that it would support transgender discrimination claims in affirmative litigation it is authorized to bring under Title VII, and did so in a case a few months later, brought against Southeastern Oklahoma State University.
Of the effect the ruling has had, Feldblum was direct: “I really felt that the legal analysis would stand on its own, and I think history has borne that out.”
To those who have criticize her effort as “legal overreach,” Feldblum got exercised.
“Well, actually, we were engaged in legal correction when we issued Macy,” she said. “The legal overreach happened when the EEOC and the courts first considered charges from transgender people and gay people and carved out, essentially, an LGBT exception to sex discrimination law. That was legal overreach.”
Her work on these issues, as Feldblum sees it, is getting rid of discrimination written into sex discrimination law when rampant government-sanctioned discrimination against LGBT people made it so that the “agency and the courts could not apply the words as written.”
The EEOC itself later did more of that work, following up on the Macy decision with a further ruling that specifically found that discrimination in restroom and locker room usage, among other workplace realities, was prohibited under Title VII.
In that complaint, brought by Tamara Lusardi — a transgender woman working for an Army research center in Huntsville, Alabama — the commission found that Lusardi was “subjected to disparate treatment on the basis of sex when she was denied equal access to the common female restroom facilities.”
Notably, the commission added that “co-worker confusion or anxiety” can’t be the justification for discrimination in the workplace.
On May 13, the Education Department issued guidance to local school districts nationwide that schools should apply Title IX regulations in a way that would protect against anti-transgender discrimination.
“When a school provides sex-segregated activities and facilities, transgender students must be allowed to participate in such activities and access such facilities consistent with their gender identity,” the guidance read.
In September, the federal judge hearing the Texas-led case agreed with the states, issuing a sweeping, nationwide injunction, halting enforcement of the Education Department’s guidance and, potentially, many of the other administration pro-transgender policies. After further briefing, US District Court Judge Reed O’Connor reiterated the nationwide scope of his injunction earlier this week.
On Thursday, the Justice Department notified the court that it would be appealing the injunction — setting up a high-profile fight over the policies in the 5th Circuit Court of Appeals.
By time the Education guidance was issued and the Texas case was filed, however, another situation had turned the issue into a national firestorm: North Carolina’s March passage of HB2 — a law that includes a provision barring many transgender people from using public and other governmental restrooms that match their gender identity.
The American Civil Liberties Union (ACLU) and Lambda Legal sued the state and University of North Carolina. The state’s governor, Pat McCrory, sued the Department of Justice. Then, on May 9, US Attorney General Loretta Lynch held a news conference to announce that the Justice Department would be suing the state of North Carolina over the anti-transgender provision.
“We see you,” Lynch said directly to transgender people, “we stand with you; and we will do everything we can to protect you going forward.”
For Mia Macy, years removed from the decision in her case, that was the moment that got to her.
“When I saw Lynch stand up at the podium and say she’s going to challenge these states, I cried. I was on my knees, and I was crying,” she said. “My wife had just woken up because she had to go to work and I paused the TV, and she came in, and I played it, and we were both crying because — it’s never been about my name — it was this magical feeling that, I didn’t think in my lifetime that I would see it.
“I seriously thought this was going to be something maybe 20 years down the road.”
And yet, as conflicting rulings across the country continue — this past week alone, there were conflicting federal court actions in Texas, Illinois, and Ohio — a Supreme Court showdown, sooner or later, is almost inevitable.
"When I saw Lynch stand up at the podium and say she’s going to challenge these states, I cried."
The first possible way that could happen is in Gavin Grimm’s challenge to the Gloucester County School Board’s policy banning him from using the boys’ restroom. Grimm — backed by the ACLU — had sued so that he could use the restroom in his high school. After initially losing at the trial court, the federal appeals court for the region had backed Grimm.
The Supreme Court put that ruling on hold while it considers whether to take the school board’s appeal of the case. Now everyone is waiting to see what the Supreme Court does.
And while Grimm’s ACLU lawyers urged the justices not to take the case — a decision that would mean the appeals court ruling in his favor would stand — Feldblum said it wouldn’t be a bad thing if the justices do take it.
“I would not be concerned at all if they take the case. I think this needs to go to the Supreme Court,” Feldblum said. “It takes four justices to grant cert. If four justices think the court below was correct but that it’s important for this to be the law of the land, and especially if those four justices make the calculation that they have five justices to affirm the court below, they could well take the case.”
Even if the justices do agree to hear the case, however, isn’t likely to reach the ultimate question of whether Title VII, Title IX, and other “sex” discrimination bans include a ban on anti-transgender discrimination.
Grimm’s case can be, and was, resolved at the lower court in a more narrow way. The court ruled that the Obama administration’s guidance supporting transgender coverage was permitted under the regulations implementing Title IX because those regulations were ambiguous on the point. Because they are ambiguous, the Obama administration could adopt the position backing transgender inclusion.
That issue — referred to by a prior Supreme Court case as Auer deference — is something that, completely aside from transgender issues, some conservatives have been trying to urge the Supreme Court to revisit. The court has appeared unlikely to have the votes to do so, however, making it unlikely that the justices would take this case simply to resolve the concerns over Auer deference.
As to the larger issue of transgender people’s protections under existing civil rights laws, it would — in the regular course of things — perhaps make sense for the Supreme Court to decide whether an administration can interpret the laws to protect transgender people before deciding whether they are required to do so.
“This is not unusual for the law — to develop in sort of sequential moves,” Feldblum explained. “What’s written in one opinion — the words on that opinion — could end up being very important to a decision in an opinion a year later. Clearly, the Windsor case [striking down the Defense of Marriage Act] coming two years before the Obergefell case [striking down state marriage bans nationwide] is a classic example of that.”
The unknown factor is the uncertainty surrounding the vacancy on the court. The justices could be waiting to see what happens with the election before deciding what to do with the case — a move that could push off any news about the case until at least Nov. 10.
For now, though, everyone waits.
Holding the case, however, has a real-world effect: Until the court decides what it is doing with Grimm’s case, the stay issued by the justices this summer remains in effect — as does the school board’s policy banning Grimm from using the boys’ restroom during his senior year in high school.