As the debate over gender identity discrimination rages within the halls of state and federal governments, employers are left to wonder how the controversy will play out in the workplace. 
One high-profile aspect of the issue centers on North Carolina’s House Bill 2, which Governor Pat McCrory signed into law on March 23. The law includes requirements for public school districts and government agencies to force individuals to use restrooms, locker rooms, and changing rooms designated for the gender they were assigned at birth regardless of the gender an individual presents.
Soon after the North Carolina bill was signed, the U.S. Department of Justice (DOJ) notified state officials that the measure puts the state in violation of federal civil rights laws. In response to the DOJ, the governor and leaders in the state’s Legislature filed lawsuits against the DOJ.
Then on May 9, the DOJ followed with a lawsuit against the state. “We are seeking a court order declaring House Bill 2’s restroom restriction impermissibly discriminatory, as well as a statewide bar on its enforcement,” U.S. Attorney General Loretta E. Lynch said in a statement announcing the suit. She also addressed the transgender community, saying, “no matter how isolated or scared you may feel today, the Department of Justice and the entire Obama Administration wants you to know that we see you; we stand with you; and we will do everything we can to protect you going forward.”
Richard L. Rainey, an attorney with Womble Carlyle Sandridge & Rice, LLP in Charlotte, North Carolina, points out that the bathroom and locker room portion of the state’s new law doesn’t apply to private businesses. He said the DOJ lawsuit targets the bathroom provisions of the law. Its other provisions, such as the prohibition on local governments from enacting their own minimum wage requirements, likely won’t be affected by the outcome of the litigation.
The DOJ action is just the latest signal from the Obama administration that it intends to offer protections to the lesbian, gay, bisexual, and transgender community. But just how the issue will fare in the courts is still up in the air, according to Bradley T. Cave, an attorney with Holland & Hart LLP in Cheyenne, Wyoming, who points out that guidance from government agencies may not be legal requirements.
The Equal Employment Opportunity Commission (EEOC), for example, is advocating for a particular course of action for the nation’s employers and taking legal positions in lawsuits, but how juries will view the issue isn’t clear, Cave says.
“As employers confront these situations, they need to be reasonable about it and do what they can to assist” a transgender employee, Cave says, but the law may not require them to bear a substantial burden to do so. Before adopting a variety of policies to address the issue, he advises employers to see how the legal landscape develops.
Cave says he doesn’t see the issue come up frequently. In the cases he’s familiar with, employers have had to deal with a locker room and restroom change for employees going through a medical transition. That’s more of an ad hoc situation that’s less difficult for employers to manage than when dealing with employees who switch between genders instead of transitioning in a formal, medical sense.
Federal agency guidance
As part of the Obama administration’s efforts against gender identity discrimination, the EEOC has released a fact sheet titled Bathroom Access Rights for Transgender Employees Under Title VII of the Civil Rights Act of 1964.
The fact sheet outlines several court decisions shaping the EEOC’s enforcement of Title VII, which prohibits discrimination based on race, color, national origin, religion, and sex. Although the law doesn’t expressly address gender identity and sexual orientation, recent court and agency interpretations have concluded that such discrimination falls under the category of discrimination based on sex.
The fact sheet explains rights the EEOC expects employers to protect in the workplace. “Gender-based stereotypes, perceptions, or comfort level must not interfere with the ability of any employee to work free from discrimination, including harassment,” the fact sheet states. It continues by saying, “Like all non-discrimination provisions, these protections address conduct in the workplace, not personal beliefs. Thus, these protections do not require any employee to change beliefs. Rather, they seek to ensure appropriate workplace treatment so that all employees may perform their jobs free from discrimination.”
In addition to the EEOC guidance, the Occupational Safety and Health Administration has issued A Guide to Restroom Access for Transgender Workers. The “core principle” of the guide states, “All employees, including transgender employees, should have access to restrooms that correspond to their gender identity.”
The guide suggests employer policies that allow employees to decide the most appropriate restroom option. It also says the best employer policies provide additional options such as single-occupancy gender-neutral facilities and multiple-occupant, gender-neutral restroom facilities with lockable single-occupant stalls.