‘Far-Reaching Consequences’

The U.S. Supreme Court's decision cementing LGBTQ workers' protections from sexual orientation and gender identity discrimination not only put employers on notice, it also signaled to colleges that they must ensure the fair treatment of transgender students playing campus sports and living in residence halls.

The 6-to-3 ruling issued Monday extended protections against employment discrimination to LGBTQ people under Title VII of the Civil Rights Act of 1964, which prohibits workplace discrimination on the basis of race, sex, religion or national origin. The court redefined its interpretation of “sex” under Title VII to encompass both sexual orientation and gender identity and, as a result, opened the door to challenges of this definition under Title IX, the law prohibiting sex discrimination at federally funded institutions.

“The answer is clear,” the court’s opinion, written by Associate Justice Neil Gorsuch, said. “An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”

The three justices who dissented from the majority opinion noted the “slippery slope” that colleges and universities are now on, said Jake Sapp, a Title IX legal researcher at the Stetson University Center for Excellence in Higher Education Law. Sapp expects an increase in lawsuits challenging institutional policies on gender-separated living facilities and sports teams as a result of the precedent-setting ruling. Lower courts addressing whether homosexual or transgender people can be discriminated against under Title IX's definition of "sex" will consider this new definition under Title VII, he said.

“This determination is really going to play into so many decisions across the country,” Sapp said. “Title VII reaches everyone … The real impact is going to be in lower courts answering this question. They now have the Supreme Court’s decision to turn to.”

The ruling states that a person’s LGBTQ identity is "inextricably bound up with sex." But the dissenting justices refer to a strict interpretation of the law at the time it was passed by Congress in the 1960s, when they say Congress likely did not intend for protections to extend "sex" beyond male and female workers. Title VII does not explicitly state “sexual orientation” or “gender identity” as attributes protected from discrimination, and this interpretation by the court will have “far-reaching consequences,” first and notably to protections under Title IX, Associate Justice Samuel Alito wrote in his dissent.

Alito raised concerns about the ruling’s impact on colleges that base dorm assignments or bathroom use designations on biological sex. He noted that transgender athletes can now argue they have the right to compete against students of a different biological sex. Applying the same Title VII definition of “sex” to Title IX could “undermine one of that law’s major achievements, giving young women an equal opportunity to participate in sports,” Alito wrote.

The Department of Education under President Barack Obama instructed colleges to treat transgender students as the gender with which they identify or face sanctions for violating Title IX, said Audrey Anderson, counsel at the law firm Bass, Barry & Sims and former general counsel for Vanderbilt University. The Trump administration rescinded this guidance in 2017, and last month it found a Connecticut high school athletic conference in violation of Title IX for allowing transgender women to compete in track against students who were assigned female at birth.

The Supreme Court ruling now offers high schools included in the conference the opportunity to challenge the department’s decision and establish that discrimination based on sex as prohibited under Title IX also applies to transgender students, which would extend to federally funded colleges, Anderson said. The ruling has implications for a Title IX case currently in the U.S. Court of Appeals for the Fourth Circuit that involves a transgender high school student’s right to use the bathroom of their choice. The judges and the attorneys involved in that case have said they were anticipating the Supreme Court ruling to have an impact on the bathroom case, Anderson said. They suggested the extended definition of "sex" under Title VII was a determining factor in whether Title IX's definition also applies to discrimination for being transgender, she said.

“If under Title VII it is unlawful discrimination to discriminate based on transgender status, that’s a good argument to say it’s a violation under Title IX to discriminate based on transgender status,” Anderson said. “It will be interesting to see what the department does in response to this. They have been very active in saying ‘sex’ is what you’ve been assigned at birth based on your biological characteristics.”

GLSEN, a nonprofit organization that advocates for LGBTQ students, urged U.S. Secretary of Education Betsy DeVos in a press release to “reverse her attacks on trans students immediately” given the “decisive guidance” of the Supreme Court ruling. DeVos had previously told the organization’s leaders that she was waiting for such a ruling for clarity on how Title IX applies to transgender students’ rights, according to Eliza Byard, executive director of GLSEN.

“Today, the Supreme Court couldn’t have been more clear, ruling that 'it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex,’” Byard said. “Now, [DeVos] can no longer hide behind the claim of waiting for the courts. Trans girls are girls. Trans boys are boys. And the law protects them from discrimination ‘on the basis of sex.’”

The department’s new regulations under Title IX released on May 6 addressed multiple comments from LGBTQ advocacy organizations and members of the public who were concerned that the new procedures for officials to respond to campus sexual misconduct did not explicitly mention protections for homosexual or transgender students. In response, the department stated that protections against sexual harassment and assault apply to all students and declined to define "sex." The new regulations said past interpretations of Title IX and related guidance “presuppose sex as a binary classification” of male or female and deferred to the definition of “sex” under Title VII. The two laws are “so intertwined together,” Sapp said.

There is no question that the ruling will affect college and university employees at religious-oriented institutions who are targeted for identifying as LGBTQ, said Shane Windmeyer, executive director of Campus Pride, a nonprofit organization that supports LGBTQ student leaders and allies on campuses across the U.S. The ruling “creates a wall” of legal precedent specifically to protect transgender students from the Trump administration’s efforts to reduce their rights, Windmeyer said. It is a signal to college leaders about where the law is headed, he said.

“If I were an administrator, I would be paying attention to see where I need to be in the future to be on the right side of history and make sure students are protected,” Windmeyer said. “Or else I think you’re opening yourself up to litigious issues regarding LGBTQ students, and even employees.”