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The Meaning of 'Sex'<br><i><font size="-1">LGBTQ Rights Under the Legal Microsope</i><br><i>Part Two of a Two-Part Article</font></i>

By Christopher A. D'Angelo
February 01, 2017

Last month, we discussed the fact that the Supreme Court has granted certiorari in a case involving Gavin Grimm, a transgender student in Virginia, and his attempt to use men's restrooms and locker-room facilities in his school district. The critical issue in the case involves the U.S. Department of Education's (DOE) interpretation of a federal prohibition on sex discrimination in schools. The DOE concluded that the term “sex” includes gender identity and sexual orientation, initially permitting Grimm the access he desired. After his county school board implemented a policy in direct contrast to the DOE's interpretation, Grimm filed suit in district court, challenging the policy. The case was dismissed, and subsequently appealed by Grimm to the U.S. Court of Appeals for the Fourth Circuit. In G.G. ex rel. Grimm v. Gloucester Cty. Sch. Bd., 822 F.3d 709 (4th Cir. 2016), the Fourth Circuit, giving deference to the DOE's interpretation of federal regulations, overruled the district court's dismissal, and upheld the DOE's interpretation of the meaning of “sex.”

The Supreme Court's decision in this case, Gloucester County School Board v. G.G., is likely to have a significant impact on federal workplace discrimination laws, despite the fact that the case does not implicate the employment relationship, or involve employment law. The Religious Freedom Restoration Act of 1993, 42 U.S.C.A. § 2000bb–1(b), may also impact the future of LGBTQ workplace rights. If case law is still largely unsettled as to whether sexual orientation and gender identity are protected under the umbrella of “sex,” can religious freedoms be asserted as a reason to deny employment on the basis of LGBTQ status? In EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., No. 14-cv-13710-SFC-DRG (E.D. MI filed 08/18/16), a district court in Michigan recently relied on another, more recent Supreme Court decision, Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 189 L. Ed. 2d 675 (2014), to hold that an employer can terminate a transgender employee using religious freedoms as a valid legal justification. Some state legislatures are also attempting to use Hobby Lobby as a jumping-off point to enact religious freedom laws that might very well implicate the LGBTQ community in that same way. See http://bit.ly/2hlMQeG.

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