Transgender Status and the Bathroom Question
With North Carolina recently passing a state law which requires a transgender person to use the restroom that matches their sex at birth, the question many Floridians are asking now is: If a person is transgender, or has a gender identity or expression different than the one assigned at birth, which bathroom in Florida would he or she use?
There is currently no codified language in the federal statutes that directly addresses bathroom use in the context of transgender status. Yesterday, however, a federal appeals court for the Fourth Circuit (which covers five states, including North Carolina) ruled on the issue pursuant to Title IX, which is the federal law that prohibits gender discrimination in schools. The Court held that under Title IX, students have a protected right to use the bathroom that corresponds to their deeply felt gender identity, regardless of their gender assigned at birth.
In addition, some federal agencies, including the EEOC and OSHA, have taken the position that employees enjoy certain protections when it comes to bathroom use and their gender identity or expression, or transgender status. Increasingly, states and municipalities are also enacting legislation addressing the “bathroom question.” Florida state law is silent on transgender, gender identity and expression issues. Miami-Dade and Broward Counties have prohibited discrimination based on gender identity and gender expression, but no decisions have been issued regarding bathroom use. While the law continues to evolve (and quickly), some employers have taken a proactive approach to gender identity and the “bathroom question.”
Let’s break it down.