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Transgender Status and the Bathroom Questionmaxresdefault

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.

What is Transgender or Gender Identity?

According to the Transgender Law Center, “gender identity” is a person’s internal, deeply-felt sense of being male, female, something other, or in between.  “Transgender” is an umbrella term that describes people whose gender identity or gender expression is different from their birth assigned gender. Transgender women are people who transition from male to female. Transgender men are people who transition from female to male.  However, a “transition” can take on different forms, including “coming out” to tell one’s friends, family or co-workers, name changes in both social settings or on legal documents, and/or (but not necessarily) hormone therapy or surgical procedures, to name only a few.

So, Which Bathroom?

The basic principle adopted by the EEOC and OSHA is that all employees should be permitted to use the bathroom facilities that correspond with their gender identity. In other words, let people choose their bathrooms based on their deeply-felt gender identity. For example, someone who identifies as a man should be permitted to use the men’s bathrooms. By the same token, someone who identifies as a woman should be permitted to use the women’s bathrooms.

A common concern with this “choose your own bathroom” approach is that it may be outside the comfort level of other employees who use the same bathroom.  Notably, the EEOC has taken the position that a transgender employee cannot be denied access to common restrooms used by employees who have the same gender identity, even if other employees react negatively to the common use.  Employers who try to address this concern by requiring transgender employees to use only gender-neutral bathrooms may be perceived as segregating transgender employees in an impermissible manner. So, what then?

If you think this is all more easily said than done, consider some recommended practices:

Providing Additional Options (and making them truly optional)

Employers may choose to provide alternative bathroom options to all employees, so each individual can find his or her own comfort level. These options would be available to all employees, but mandatory for none.  Consider having:

  • Single-occupancy, gender-neutral (unisex) facilities; or
  • Multiple-occupant, gender-neutral (unisex) facilities with single-occupant stalls that lock.

Gender-neutral bathroom facilities should have gender-neutral signs or designations.

It is important to understand the difference between providing these additional options, and requiring certain employees to use them. It is not prudent to require any employee to use a segregated or separate facility apart from other employees because of his or her gender identity, expression, or transgender status.  Furthermore, employees should not be limited to using facilities that are unreasonably inaccessible in terms of both distance and travel time from their worksite.  Therefore, employers who provide the options listed above should ensure that all bathroom facilities are more or less equally accessible.

Updating Your Policies

Many employers are adopting policies against discrimination and harassment, or drafting new ones where necessary, to ensure that transgender status and gender identity and expression are covered under the policy’s protections. Such policies prohibit discrimination, harassment, threats, intimidation and inappropriate disruptive behavior, as well as retaliation.  In this way, if management becomes aware that any employee feels threatened or intimidated by using the bathroom of his or her choice, prompt action can be taken to address the issue.

For more on these quickly-developing LGBT legal issues, check out Stearns Weaver Miller’s 26th Annual Labor & Employment Law Seminar, to be held on May 20, 2016 at the JW Marriott Marquis Miami.