Bruce Jenner’s transformation from male to female has certainly made everyone aware of the issues surrounding transgender individuals. One such issue many companies face in dealing with transgender employees in transition deals with restroom use. Which restrooms should they be allowed to use is often the question.
Once someone has changed gender by having a sex change operation the answer to the question of which restroom do they use becomes an easy one to answer. They use the restroom assigned to their new gender. However, what about the situation where the individual is still in transition? Especially in cases of males becoming females many employees feel uncomfortable with sharing a restroom with a fellow employee who is still “male”. Some businesses have “solved” this situation by having three restrooms, male, female and unisex. Unfortunately that doesn’t work for all companies. What about situations where the unisex restroom is occupied? Where does the transitioning employee go then?
EEOC vs US Army
A law suit filed by the EEOC against the US Army provides us an answer. The case of Tamara Lusardi allowed the EEOC to rule on just such a situation. Lusardi was transitioning from male to female. Lusardi had assumed the identity of “female” yet had not yet had the surgery. She had agreed to use the unisex restroom until her surgery was complete. However, during times when that unisex restroom was occupied she would use the women’s restroom. Each time this happened she was confronted by a supervisor telling her that her use of the restroom was making other women uncomfortable and until she could prove she had completed the surgery she was not to use the women’s restroom.
Naturally such a confrontation resulted in a lawsuit filed by the EEOC. The EEOC sided with Lusardi saying:
“Nothing in Title VII makes any medical procedure a prerequisite for equal opportunity (for transgender individuals or anyone else.) An agency may not condition access to facilities – or other terms, conditions, or privileges of employment – on the completion of certain medial steps that the agency itself has unilaterally determined will somehow prove the bona fides of the individual’s gender identity.”
According to Julia Giddings, an attorney with Gray Plant Moody, “The EEOC’s decision in Lusardi makes clear the EEOC’s position that transgender individuals must be permitted to use the workplace restroom that matches the individual’s gender identity.” She recommends that employers revisit their policies and train supervisors and managers on the proper response to such situations.
Although Title VII did not originally address transgender issues nor provide protection to transgender individuals, the EEOC’s current interpretation of the word “gender” does provide for Title VII protection. Therefore companies need to be aware that you must deal with an employee by the gender identity they have adopted, not the one with which they were born.