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The Transgender Restroom Dilemma: Legal Requirements and Best Practices

This election year has seen the emergence of a controversy that might seem an unlikely subject for a presidential campaign: restrooms, and who uses them. But the question of who should use which restroom is an issue that should be considered not only by politicians, but by employers as well. It is estimated that about 700,000 adults in the United States are transgender, meaning that their gender identity does not match the sex they were assigned at birth. At some point in their lives, many transgender persons transition to living their daily lives as the gender with which they identify, rather than conforming to their birth sex.

All employers are required to provide sanitary restrooms for their employees’ use, and many employers choose to provide separate facilities for men and women. When it comes to transgender workers, there can be confusion as to whether it is more appropriate for such workers to use the restroom corresponding to their gender identity or the one corresponding to their birth sex.While there is not yet any federal law addressing this issue, OSHA has issued guidance providing that employers should permit their employees to use the restroom that matches the gender with which they identify. In other words, the choice of which restroom is appropriate should be up to the individual employee, not dictated by the employer. The EEOC is in agreement with this policy.

In New York State, it is illegal for an employer to discriminate on the basis of gender identity or transgender status. New York City also prohibits such discrimination, and has issued enforcement guidelines specifying that transgender employees must be permitted to use the restroom corresponding to their gender. New York is not alone in protecting transgender employees from discrimination. A number of other jurisdictions, including California, Colorado, Illinois, Iowa, Maine, Minnesota, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, and Washington, and the District of Columbia, prohibit discrimination against transgender people in employment.

Employers in these jurisdictions, or employers who wish to adhere to OSHA’s guidelines, should respect the choices of their employees regarding which single-sex restroom to use. As for employers outside these jurisdictions, although such employers are not currently subject to laws specifically prohibiting discrimination based on transgender status, they may nevertheless want to be mindful of the interplay between these issues and employee safety. For example, if a transgender woman is forced to use a restroom that is otherwise used only by men, she may feel unsafe or threatened.

The issue of restroom use by transgender employees is one many employers had never thought much about before this year. But since this issue has now become part of the national conversation, employers would be wise to take this opportunity to consider whether their restroom policies are compliant with all applicable laws in their jurisdiction.

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