The Supreme Court hears oral arguments tomorrow (October 8th) on several high-profile cases that will help decide the future of transgender rights in the United States. The Court will explore whether existing federal bans on sex discrimination also prohibit discrimination based on gender identity and sexual orientation.
Title VII of the Civil Rights Act of 1964 protects employees from discrimination on the basis of race, color, religion, sex, and national origin. Recent decisions out of the Second and Sixth Circuits hold that Title VII’s reference to “sex” includes sexual orientation and transgender status.
Courts look to cases interpreting Title VII when evaluating claims under Title IX of the Education Amendments Act of 1972, which protects students from sex discrimination by any educational program that receives federal funding. So these decisions go a long way towards protecting transgender rights.
However, not all circuits take this approach. Recent conflicting decisions out of the Fifth and Eleventh Circuits hold that discrimination based on sexual orientation is not actionable under Title VII. The Departments of Justice and Education currently support the Fifth and Eleventh Circuits’ approach, taking the position that Title VII and Title IX do not prohibit discrimination on the basis of sexual orientation and transgender status.
Implications for Residential Summer Camps
The residential camp experience raises unique considerations because campers and staff live together in such close quarters. The industry as a whole tends to be progressive and forward-thinking.
Many camps offer multiple housing options, which include gender-neutral/all-gender housing and housing for transgender campers, staff and allies of the same gender identity. Many other camps offer traditional gender binary housing options but make housing decisions based on gender identity rather than biological gender.
Much like the split among the courts, not all camps take this approach. Many programs, especially those in smaller markets, simply don’t have policies in place. Other camps refuse to recognize the transgender community and make their programs hostile, unaccommodating environments to transgender campers and staff.
If the Supreme Court takes the same approach as the Second and Sixth Circuits, then its decision will fundamentally change how this last group of camps approaches the transgender community.
Right now, non-inclusive camps are in a bit of a legal grey area depending on their location. Assuming state law does not dictate a particular outcome (and it often does), then camps within the Second and Sixth Circuits cannot discriminate against transgender staff, camps within the Fifth and Eleventh Circuits can, and camps in other circuits face conflicting precedent (which the Supreme Court will soon resolve).
Of course, the grey area is not limited to non-inclusive camps. Even the most progressive programs run into complex policy questions. Imagine a camper who arrives to camp identifying as a different gender than the one declared by their parents on the camp application. The camper requests to be housed based on their declared gender while the parents insist on housing based on biological gender. As the law in this area develops, these types of questions may have clearer answers than they do today.
Camps Should Have Strong Policies
In the meantime, camps should develop comprehensive policies for transgender campers and staff, and thus avoid scrambling to implement inelegant solutions when an unexpected gender challenge arises on opening day.
As camps work on their policies, they should be sure to comply with state laws, which are often more developed and go far beyond federal protections. New York, as one example, recently passed the Gender Expression Non-Discrimination Act, which makes gender identity and gender expression protected classes under the New York Human Rights Law. Hopefully we will see more states and the federal government follow suit in the near future.
Lucinda Swain made innumerable contributions to this post. Look out for a full analysis in Camp Business Magazine's January/February issue.