Transgender Rights in the Workplace: Restroom Access Issues

I’m Transgender. Can My Boss Decide Which Restroom I Use At Work?

It’s no secret that LGBT rights activists and advocates have been busy lately. Recent advances for the LGBT community include game-changing and landmark decisions from the Supreme Court legalizing gay marriage in all 50 states as well as decisions by a number of states and localities to update or implement new anti-discrimination laws that make it easier for LGBT workers to bring claims of employment discrimination in court.

However, some attempts to expand rights have failed and others have met with strong opposition. The Employment Non-Discrimination Act (ENDA), this year’s attempt at making employment discrimination against LGBT workers a violation of federal law, had resounding success in the Senate, but stopped dead in its track in the House.

Also, states have polished their Religious Freedom Restoration Acts (RFRAs) to provide additional remedies for abuses of religious freedoms which proponents say are sometimes curtailed by the exercise of LGBT rights. Further, some states have successfully enacted laws preventing localities from taking matters into their own hands by passing ordinances that would specifically address LGBT employment discrimination.

Yet, with all the ups and downs of the LGBT discrimination issues, one salient debate does seem to stand out. The rights of transgenders workers are increasingly coming to the forefront of the legal protection schema as more and more research reveals a significant amount of discrimination based on gender identity.

Aligning Gender Identity In the Workplace

A handful of states have enacted laws covering sexual orientation discrimination even in the absence of federal legislation addressing the same. It should also be noted that the EEOC recently ruled that sexual orientation discrimination is illegal under the dictates of Title VII’s prohibition on sex discrimination.

However, of the states that cover sexual orientation discrimination, not all specifically address gender identity, leaving transgender workers out of the employment discrimination picture. Incidentally, the workplace restroom seems to be the primary location for this gap in laws to play out. When there is no legal protection in place, employers can dictate that transgender workers do not have the privilege of using restrooms that align with their gender identity.

This means that a transgender work who identifies as a girl could not use the women’s restroom at work, but would be forced to use the men’s restroom. This is of course only the case when workplace restrooms are gender specific. To combat the controversy surrounding the transgender restroom issues, many employers are opting for gender-neutral, or “all-gender”, restrooms.

Laws on Gender Identity

In 2012, the EEOC ruled that gender identity discrimination is indeed a form of sex discrimination prohibited under Title VII of the civil Rights act. Since then, the Obama administration has moved to protect federal government workers from gender identity (and sexual orientation) discrimination by way of an important Executive Order.

However, much of the protection that transgender workers can expect would have to come from the states since there is still no federal law covering the issue. Less than half of the states across the country include gender identity in anti-discrimination laws.

After ENDA failed, Congressional leaders rebounded with the Equality Act, a proposed bill meant to protect all LGBT workers, including transgender workers, from discrimination in both employment and housing. That bill is still garnering support from prominent groups around the country and recently received President Obama’s stamp of approval as well.

Where Transgender Employees Stand in the States

Today, nineteen states and Washington, D.C. have laws on the books protecting transgender workers from employment discrimination via gender identity clauses. This means that in a huge number of other states, these workers have no protection and no rights or remedies for abuses and discriminatory treatment.

California is perhaps the state with the most expansive gender identity protection in the nation. California law protects not only the gender identity of workers, but also protects workers from discrimination based on the perception of a particular gender identity.

This means that even if an employer discriminates against a worker who is not transgender but is exposed to the unfair treatment because the employer assumes that he or she is, that employer could be held liable for violations of state anti-discrimination law.

Where Transgender Workers Stand in Localities

The noteworthy current trend toward increased or explicitly stated gender identity protection in localities via local ordinances has also expanded protection for transgender workers in some areas.  For instance, sexual orientation and gender identity anti-discrimination ordinances and amendments in the City of Dallas and Pima County in Arizona have fared much better that those in cities and counties opposed to them like Houston, TX.

In Houston, the popular vote on anti-discrimination questions turned into a heated debate over transgender restroom use. On the table was new language added to the city anti-discrimination law in favor of specific protection for sexual orientation and gender identity. The Houston city Council enacted the ordinance in July, but one Supreme Court lawsuit later, the issue was up for popular vote.

Opponents of the ordinance amendments touted the changes as just another “bathroom bill,” the term given to state and local laws which allow transgender individuals to use restrooms that align with their gender identity. This classification helped influence many voters to vote against the changes and, many say, kept the ordinance out of the City of Houston law books.

Asserting Your Rights As a Transgender Worker

At this point, the EEOC has ruled that both sexual orientation and gender identity are unique and specific aspects of sex discrimination prohibited under Title VII of the Civil Rights Act. This could provide a stable source of remedies for those who wish to challenge an employer’s right to dictate restroom use that does not line up with gender identity.

In addition, if a worker lives in any one of the nineteen states, including California and the nation’s capital, Washington, D.C., that do allow specific gender identity protections in the workplace, an employee could have a viable legal challenge to an employer’s failure to allow use of gender identity aligned restrooms.

Finally, even in states that do not have antidiscrimination laws directly aimed at protecting gender identity at work, a local ordinance may be in place that at least protects city and county transgender workers from discrimination based on gender identity – even in the restroom. However, about such complicated issues, it’s always best to contact an experienced employment discrimination attorney.

Manuela Varela

Relations Manager

Manuela Varela has been with Shegerian & Associates since August 2022. She is responsible for outreach and marketing on behalf of the firm and manages relationships between firms and referring attorneys. She is also responsible for developing business opportunities and affiliations. Manuela graduated from Loyola Marymount University with a degree in Economics and Political Science.