Ask Lambda Legal: When You Gotta Go, You Gotta Go

Q: I am the human resources manager for a mid-size corporation.  One of our employees has informed us that they she is transitioning from male to female.  This is my first experience with this.  We have set the tone that the staff should call her by her new name and use the female pronoun, but what should we do about the bathrooms? 

A: Everyone should use the restroom that matches their gender identity, regardless of whether they are making a gender transition or appear gender-nonconforming. In a perfect world, that would be simple, but the realities of anti-transgender malice and a widespread lack of understanding about transgender people's lives can complicate things.

The simple act of finding a toilet shouldn't be stressful, but that's a daily reality for many transgender men and women.  Restrooms tend to invite extra scrutiny of people's appearance based on comparisons to stereotypes about how men and women are supposed to look or act.  The mere possibility of hostile remarks from other bathroom goers, questions from store owners or mall security or arbitrary restrictions from employers, can be so frightening that many just "hold it."

U.S. Occupational Safety and Health Administration (OSHA) forbids employers from placing "unreasonable" restrictions on restroom access. There is no rule that a person must look a certain way to use a certain restroom.  This kind of "gender policing" is harmful to everyone, whether a transgender person, a butch woman, an effeminate man or anyone dressed or groomed in a way that doesn't conform to someone else' gender standards.  By insisting that someone use the wrong bathroom, an employer is both violating the employee's privacy by singling him or her out, and outing the person as transgender.

If other employees complain about having to share a restroom with a transitioning co-worker, employers need to offer an alternative, such as an individual restroom. But keep in mind that it isn't the job of the transgender person to do the accommodating. (This was affirmed in a 2002

Michigan federal appeals court ruling in the case of Cruzan v. Davis.)  Transgender people should not be singled out as the only employees using any particular restroom. But providing individual and/or unisex restrooms is not a bad idea, because they do provide more options for transgender/non-conforming (TGNC) people, as well as for people with young children and people with disabilities who need help from someone of a different gender. We're here to help both you and your employee.  We're putting the finishing touches on a fact sheet about fair and equal access to restrooms.  You'll find it online soon at www.lambdalegal.org.  You can also contact our national help desk at (toll-free) 866-542-8336.