Anxiety Over Transgender Women in Restrooms Persists

North Carolina law was a response to such concern, but it exists elsewhere, too

By Allen Smith, J.D. Mar 28, 2016
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The use of women’s restrooms by those transitioning from male to female remains tricky, and not just in North Carolina, where a new law prohibits localities from enacting nondiscrimination protections for lesbian, gay, bisexual and transgender (LGBT) individuals. 

North Carolina’s General Assembly passed the law, which takes effect April 1, largely in response to a Charlotte, N.C., law that allowed transgender individuals to use restrooms that correspond with their consistent gender presentation.

“The basic expectation of privacy in the most personal of settings, a restroom or locker room, for each gender was violated by government overreach and intrusion by the mayor and city council of Charlotte,” North Carolina Republican Gov. Pat McCrory said. “The new government regulation defies common sense and basic community norms by allowing, for example, a man to use a woman’s bathroom, shower or locker room.”

However, Charlotte Mayor Jennifer Roberts, a Democrat, said, “I am appalled with the General Assembly’s actions today. It has passed a bill that is worse than what we have seen in Indiana and Georgia and other states. This legislation is literally the most anti-LGBT legislation in the country.”

Indiana passed a Religious Freedom Restoration Act last year that was criticized as permitting discrimination by businesses against gay individuals. Georgia’s legislature has passed similar legislation and its governor has until May 3 to decide whether to veto it. The Walt Disney Co. said it would stop film production in the state if the bill is signed, according to MSNBC. Georgia Gov. Nathan Deal, a Republican, said on March 28 that he will veto the bill, ABC News reported.

Todd Solomon, an attorney with McDermott, Will & Emery in Chicago, said he “would expect that the North Carolina law may face significant backlash similar to the Indiana situation.”

Conflicting Directives

Transgender individuals are among the few groups of people who still regularly face overt discrimination, said Michelle Phillips, an attorney with Jackson Lewis in White Plains, N.Y. Some employees refuse to talk with or work with transgender people, she said.

“Even in states where transgender status is not protected, employers are governed by the Occupational Safety and Health Administration” (OSHA), noted Nancy Puleo, an attorney with Posternak Blankstein & Lund in Boston. “OSHA has published ‘A Guide to Restroom Access for Transgender Workers,’ which provides that ‘regardless of the physical layout of a worksite, all employers need to find solutions that are safe and convenient and respect transgender employees.’ ”

The guidance also states, “No employee shall be required to use a segregated facility apart from other employees because of their gender identity or transgender status.”

In addition, the Equal Employment Opportunity Commission (EEOC) determined last year that a government employer discriminated against a transgender employee when it required a worker who was transitioning from male to female to use a unisex bathroom because the employee’s use of a women’s restroom made her co-workers uncomfortable.

Title VII of the Civil Rights Act of 1964, which prohibits discrimination based on race, color, sex, national origin or religion, does not explicitly bar discrimination based on sexual orientation or gender identity, and attempts to amend it to add such a prohibition have failed thus far.

However, “The EEOC now recognizes discrimination based on sexual orientation or gender identity as a form of sex discrimination, as does Executive Order 11246, which applies to government contractors,” said Anna Ferrari, an attorney with Morrison & Foerster in San Francisco.

“So, on one hand, you have federal agencies prohibiting employers from discriminating against transgender employees with respect to bathroom use, and on the other hand, you have the North Carolina bill that does exactly the opposite,” Puleo remarked.

No. 1 Concern

The bathroom issue is the No. 1 concern employees express about transgender individuals, Phillips noted, saying employers should follow OSHA and EEOC guidance  protecting transgender individuals.

“Many employees and managers have difficulty wrapping their heads around” the use of a women’s restroom by a transgender person. There is “the fear they will act in a sexual manner toward someone,” said Phillips. 

Phillips said it’s important to “allay concerns based on stereotypes.”

Since Caitlyn Jenner, former Olympic decathlon winner Bruce Jenner, transitioned from male to female, there has been a “sea change in the number of out transgender women. And it’s not going away,” Phillips remarked.

Employers need to be on the lookout for managers who tell HR they won’t tolerate discrimination against transgender people, but send signals that they don’t agree with the company's nondiscrimination policy, such as rolling their eyes when instructing workers on not discriminating, or laughing at insensitive jokes about transgender people.

“The stated basis for the North Carolina bill is specious because despite the passage of LGBT legislation in over 200 cities, there have been no incidents of transgender sexual predators and no increases in sexual assaults in bathrooms. It’s a myth that transgender people either are or are more inclined to be sexual predators or perverts. The Charlotte ordinance simply permitted people to use bathrooms that matched their gender identity,” Phillips said.

In addition to North Carolina, Arkansas and Tennessee have passed laws that pre-empt localities from passing LGBT anti-discrimination legislation, Ferrari noted.

“We are seeing a flurry of copycat legislative proposals,” said Scott Rabe, an attorney with Seyfarth Shaw in New York City. “Given that this is a big election year, we would not be surprised to continue seeing new proposals.”

“Bills that would have pre-empted local protections were rejected this year in Indiana, West Virginia, Virginia and Oklahoma,” said Rose Saxe, senior staff attorney with the American Civil Liberties Union (ACLU) in New York City. She said laws like North Carolina’s are unconstitutional and “will certainly be the subject of litigation.” The ACLU filed suit for a preliminary inunction on March 28, ABC News reported.

The North Carolina law does not require private employers to change their policies or practices, Rabe observed. “Where confusion may arise, however, is in the context of employees who misinterpret the law to mean that LGBT employees are not protected from discrimination in the workplace. Because of this, employers with such policies protecting LGBT employees should find opportunities to reaffirm and communicate their EEO [equal employment opportunity] policies to employees,” he said.

Allen Smith, J.D., is the manager of workplace law content for SHRM. Follow him @SHRMlegaleditor.

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