Transgender employees need bathroom access

Most employees take it for granted that they will have access to a restroom. Recently, however, the news has shed light on the particular difficulties that transgender individuals face when they need to use the bathroom.

Texas legislators are considering a bill (Senate Bill 6) that would prohibit transgender individuals from using the bathroom that corresponds to their gender identity. This is a harmful measure that would potentially keep transgender individuals from being in public spaces. Supposedly, this is to protect cisgender individuals, but such laws support people’s private and unfounded prejudices, which has the effect of actually endangering transgender individuals.

Often, transgender individuals are confronted or otherwise treated with hostility, no matter which gender’s restroom they use. Employers are legally required to give their workers reasonable access to restrooms, and transgender employees must be able to access bathrooms in their workplace to be able to work and support themselves.

Under Occupational Safety and Health Administration (OSHA) guidelines, employers must make toilets available so that employees are able to use them when necessary, and an employer can’t put unreasonable restrictions on an employee using the toilets. The best practices guidance related to transgender employees is that employees must be given access to restrooms corresponding with their own gender identity. In other words, employers cannot require an employee to use a bathroom based on the sex they were assigned at birth.

Although there has been employment discrimination litigation brought in connection with this issue for years, the law remains somewhat unclear. There is no explicit prohibit on discrimination against transgender employees. Case law and EEOC guidance have provided that Title VII of the Civil Rights Act, which prohibits sex discrimination, also implicitly prohibits gender identity discrimination.

While Title VII provides some protection to transgender employees in connection with their use of bathrooms, the courts do not all agree on how Title VII should be analyzed. For example, in Texas, a federal court has stated that discrimination against a transgender employee wasn’t a form of sex discrimination. Although the EEOC has confirmed that transgender discrimination is prohibited under Title VII, the guidance isn’t the last word with the courts, and eventually a Supreme Court decision will probably determine this issue.

Texas law doesn’t explicitly remark on transgender discrimination either, and there is little evaluation of the issue of bathroom access in state court decisions. It is likely that federal law will need to be clarified, and state courts will follow suit. There are, however, many anti-discrimination ordinances in Texas cities that explicitly prohibit discrimination against transgender individuals, both in the workplace and in other public places.

Texas and federal laws need to provide explicit protections for transgender workers so that they can access bathrooms. Although the right is included in OSHA and EEOC guidance, there is still some wiggle room for employers to claim that they have the right to discriminate under case law. Without a clear and unequivocal right to access the bathroom that corresponds to their gender identity, transgender employees are not being given the ability to participate in the same employment benefits and privileges as cisgender employees.

It can be important to obtain representation from an experienced employment lawyer when you have a dispute with your employer regarding discrimination and other matters. Contact us at (214) 528-6500 or via our online intake form.

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