In 2010 Donald Zarda was fired from his job as a skydiving instructor after revealing he was gay to a student. In 2013 Gerald Bostock was fired in Georgia for joining a gay softball league. Also in 2013 Aimee Stephens was fired from a position as a funeral director after transitioning from living as a biological male to female. All 3 sued their former employers under Title VII (of the Civil Rights Act of 1964), which prohibits employers from discriminating on the basis of race, color, national origin, sex, and religion.
On June 15, 2020, the United States Supreme Court ruled that each of these individuals had suffered unlawful sex discrimination under Title VII. The Court ruled that an employer cannot “fire someone simply for being homosexual or transgender.” In Bostock v. Clayton County, 590 U.S. ___ (2020), the Supreme Court announced that Title VII prohibits employers from taking adverse action against an employee because the employee is gay or transgender.
The Court further explained that an employer violates Title VII even when an employee’s sex is only a part of the reasons for firing. “It doesn’t matter if other factors besides the [employee’s] sex contributed to the decision.” The Court explained that it is impossible to discriminate against individuals for being homosexual or for being transgender without necessarily discriminating because of sex.
So what does this mean for schools? You all have a lot on your plates, we get it. But the Bostock decision will have immediate implications for schools that educators and school board members will have to consider before the 20-21 school year begins.
Public Schools May Not Make Employment Decisions Based on Sexual Orientation or Transgender Status. Before June 15, employers in both Nebraska and South Dakota were not explicitly prohibited from firing or reassigning an employee based on his/her sexual orientation or gender identity. In our experience schools were not making decisions on those bases anyway, but the Supreme Court has made clear that Title VII prohibits school districts from taking adverse employment actions--especially hiring and firing decisions--because an individual employee is homosexual or transgender.
Bathroom and Locker Room Issues Are Still Uncertain, Particularly for Transgender Students. The Court tried to limit its decision to employment matters under Title VII. The majority opinion made a point of saying that it did not “purport to address bathrooms, locker rooms, or anything else of the kind” under Title IX or any other laws. Some dissenting justices were not convinced, stating, “The Court’s brusque refusal to consider the consequences of its reasoning [on issues like bathrooms and locker rooms] is irresponsible.”
It is difficult to imagine that this decision will not have at least some effect on complaints related to transgender individuals’ access to single-sex facilities like bathrooms and locker rooms. As those disputes arise, the application of Bostock will be interesting. For example, the Court concluded that in the employment context, an “individual’s homosexuality or transgender status is not relevant to employment decisions.” However, an individual’s sex is of course relevant to whether that person can use a single-sex bathroom or locker room. The critical question is whether a person’s sex--for transgender access to single-sex facilities--is limited to their biological sex at birth or whether it may be defined by the sex (or gender) with which the transgender person later identifies. In strict terms, the Court’s Bostock opinion did not explicitly address that issue.
Bostock Will Be in the Forefront in Some Cases Under the New Title IX Regulations. Schools are already scrambling to comply with the new Title IX regulations, which become effective on August 14, 2020. (We blogged about those new regs here.) The Court tried to avoid saying categorically that homosexuals or transgender individuals are “protected classes” such that any harassment on that basis could trigger obligations under Title IX. However, we know advocates will understandably argue that the broad conception of discrimination “because of sex” in Bostock will extend Title IX protections for students in public schools in a variety of ways. Schools should consult with legal counsel on the impact of the Court’s opinion in situations where students allege harassment or assault based on their sexual orientation or transgender status. Training for all staff about these issues has now become even more urgent under the new Title IX regulations, as well.
As you consider these and other issues, we recommend that you speak with your school lawyer or contact Karen, Steve, Bobby, Coady, Jordan, and Tyler at ksb@ksbschoollaw.com or (402) 804-8000 to discuss these issues.