HR Management & Compliance

HR’s New Stumbling Block Is the Bathroom?

With states and municipalities passing laws designating gender identity as a protected class and the number of employees self-identifying with gender identity issues increasing, many employers are concerned, especially with transgender employees and bathrooms.

Sad to say, that’s where it’s at in HR today, worrying about how to juggle toilets to avoid discriminating on the basis of gender identity.

What Is Gender Identity?

For many people, the concept of “gender identity” is a confusing one. They were born male or female, they see themselves as male or female, and they don’t see what the controversy is about. For others, the situation is not nearly so simple. For example:

Transsexuals: Transsexuals are people who perceive that their gender identity conflicts with the sex that was assigned to them at birth. They sometimes undergo hormone therapy and/or gender reassignment surgery. Often, transsexuals are described as female-to-male (FTM) or male-to female (MTF).

Intersex individuals: Intersex people are born with chromosomes, external genitalia and/or an internal reproductive system that is not considered “standard” for either males or females.

Gender variant: Gender variant people, sometimes called androgynous, are people who have a gender identity that is not completely male or female. The category includes people who do not conform to the expectations of a specific gender role as well as to people who express both traditionally masculine and feminine categories.

Transvestites: Transvestites, sometimes called cross-dressers, are people who like to wear the clothes traditionally associated with the opposite sex. Most transvestites are men who sometimes feel the need to dress like, and act like, women, although sometimes the reverse is true. Transvestites typically don’t want to transition to the opposite sex.


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What’s the Impact on HR?

BLR’s editor Elaine Quayle explored the question. The topic seems to come up most often in the use of facilities, particularly restrooms, Quayle says. Unfortunately, many of the new laws are not specific in defining exactly what constitutes gender identity discrimination with regard to restrooms.

Use of “gender-appropriate” facilities (long called “men’s” and “ladies’” rooms) by transgender and transsexual employees has created concern from both the employees and their coworkers and a dilemma for employers trying to “do the right thing” for everyone involved.

Requests from employees to use restrooms not of their birth sex collide with complaints from coworkers about having a man in a ladies’ room. In the 2011 Out & Equal Workplace Survey by the Harris Poll®, only half (53%) of respondents agreed that it was acceptable for a transgender individual, male to female, to use the ladies’ room.

In trying to placate all parties, employers often have transgender and transsexual employees walking down flights of stairs to a “unisex” bathroom. However, in a clarification of OSHA’s sanitation standards (29 CFR 1910.141(c)(1)(i)), the then director of compliance issues for the agency said that it is implicit that “any restrictions on toilet use must be reasonable” and “may not cause extended delays.”

Solutions to Gender Identity and Restroom Issues

Bloomington, Indiana was in the forefront of addressing this subject when its Human Rights Commission issued recommendations regarding gender identity discrimination in 2006. The ordinance outlined specific and practical suggestions for employers about restrooms and dressing rooms.

While the ordinance stated that it is not a discriminatory practice “to maintain separate restrooms or dressing rooms” on the basis of sex, the ordinance also prohibited discrimination on the basis of gender identity.

Quayle contacted Barbara E. McKinney, director, Bloomington Human Rights Commission/assistant city attorney, to determine how this ordinance has worked out in her city.

“Thus far, we have not had any complaints alleging discriminating in employment on the basis of gender identity filed with us. We’ve had some inquiries, but no formal complaints filed. Both employees and employers have called with questions, and we’ve sent them the guidelines and tried to talk through the issues,” she said.

Attorney McKinney described one gender identity complaint filed, alleging discrimination in public accommodations, where a man presenting as a woman went to a bar. “She showed her ID, a driver’s license, to the bouncer. Her license identified her as male. After she had a couple of beers, she needed to do what we all need to do under such circumstances. The bouncer, who had noticed the “M” on her license, refused to let her use the women’s room. And of course it’s quite problematic, if not potentially dangerous, for a person dressed as a woman to use the men’s room, perhaps particularly in a bar.

“We certainly understand both sides on this. Many women would be uncomfortable if they knew the person in the next stall was born a man. And the complainant would have been equally uncomfortable in the men’s room.” The Commission guidelines say that the most difficulty with gender identity discrimination “arises when an anatomical male wishes to use a women’s restroom, or vice versa.”


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“We could not find for her because of Indiana law. But we did send the bar a copy of the guidelines and offered to do training for staff,” she explained, adding that the Commission will do staff training upon request, with topics including sexual harassment, ADA, general fair employment practices including sexual orientation and gender identity issues, and affirmative action. “It depends on what the business requests,” she explains.

In tomorrow’s Advisor, Bloomington’s ordinance, tips for compliance, and an introduction to the all-HR-solutions website, HR.BLR.com.

1 thought on “HR’s New Stumbling Block Is the Bathroom?”

  1. My understanding is that coworkers probably can’t bring a legitimate legal claim for being required to share a bathroom or locker facility with a transgender coworker. On the other hand, forcing transgender employees to use facilities that correspond with their birth gender could result in litigation.

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