Restroom Access Issues

Freedom of Gender Expression

It's often remarked that, whenever transgendered people come out at work, the issue that always seems to come up is "what restroom will she (or he) use?" Restrooms are a mundane part of life, but yet this one issue causes more discussion than any other aspect of the transition. Ironically, it's not objections by coworkers that cause the problem, it's fear among the decision makers that somebody might object.

The Issue

Transgendered people are sometimes denied access to the most basic of public accomodations: the public restroom. A person in transition, or temporarily crossdressed, occasionally finds they cannot safely use the restroom matching their birth sex, yet if they use the restroom matching their presentation, they can be arrested.

A transgendered person who is reasonably presentable and does not cause trouble rarely has a problem in public. Most other people in the restroom won't object, unless the person behaves unusually, or uses the restroom different from their presentation.

In the workplace, however, a transgendered person is unlikely to "pass." People who knew her from the other gender role will know exactly who and what she is. While most people quickly become accustomed to the new gender role and don't have a problem with the new restroom, it's not unusual in a large workplace for one or two people to complain.

Fear of offending someone has led employers to very unfortunate solutions. One worker was required to get in her car and drive to a nearby hotel (or go home) to use the restroom. Another had to limit her liquid intake, because she was threatened by both male and female employees that, if she used their restroom, she would be beaten to death. Some employers force the worker to walk long distances to use a single occupancy restroom, or to hang a sign on the restroom door whenever she is in there.

Some workers have expressed concern about transgendered women using the women's restroom, because they have been taught that a person they think might be a man is not allowed to use the women's room. They feel uncomfortable with that person present in the restroom, not because of any action by that person, but because of status.

How do we deal with this discomfort?

The restroom issue can be put into perspective by recalling the Southern USA before 1960. There were separate restrooms for whites and "coloreds," and black people were not allowed in the white restrooms, not because of any action, but because of their status. We have gotten past this obvious racial inequity, and we are now addressing the same issue for transgendered people.

Is it fair to compare transgender restroom discrimination of the 2000s with restroom segregation in the South in the 1950s? At the 2006 Out and Equal conference in Chicago, Mary Ann Horton had the opportunity to ask two highly qualified women this question. The first was Rosalyn Taylor O'Neale, an articulate, professional, African American, diversity specialist and author who remembers the south in the 50s and 60s. (Ms. O'Neale's book cover is shown at right.) When asked if the transgender restroom issue was the same issue as the segregated restrooms of the 50s, Ms. Taylor said that it is, in fact, it's a very good analogy. Click here to listen to her response.

The second women was Yolanda King, the daughter of Civil Rights Pioneer Dr. Martin Luther King, Jr. Ms. King is very aware of the restroom segregation in the South and is highly qualified to comment on it. She also stated, in a very thoughtful and dignified response, that it's valid to compare current transgender restroom access to the restroom segregation of the South. (Ms. Horton's question and Ms. King's answer are shown to the right.) Click here to listen to the question and her response.

Decisions and Rulings

Employers facing the restroom issue for the first time are often inclined to apply the "Principle of Least Astonishment", which is that a person who presents as a woman will be less astonishing using the women's restroom than the men's, vice versa for a person presenting as a man. There may be concern, however, from the corporate Legal department that another employee may complain.

This situation has now been resolved by the federal courts. In landmark case Cruzan vs Davis, a ruling was made in June 2002 by a federal appeals court in Minnesota that an employer is within its rights to instruct a transgendered employee to use the restroom matching their new presentation, and that if another employee complains, the company may offer the complaining employee an accomodation (such a the use of a different restroom by the complaining employee.) The full text of the ruling can be found at http://caselaw.lp.findlaw.com/data2/circs/8th/013417p.pdf or here.

OSHA requires that all workers have unrestricted access to a convenient restroom, and has suggested that a walk of more than 1/4 mile is too far. (See OSHA's regulations , and a strongly worded clarification.) Indeed, a workers productivity will be impacted if restroom trips require a long walk.

Recommendations

Transgender at Work urges that each newly out transgendered worker be granted access to a restroom that is safe, convenient, and dignified. Usually, the simplist solution is the best: use the restroom matching the current gender presentation. On day one of transition, the employee will begin to use the restroom matching his or her new gender. This decision should be communicated to all employees with the support of management. In our experience, when management supports the right to use a gender-appropriate restroom, other employees go on with their jobs and quickly forget that there was ever an issue.

In most cases involving company-owned buildings with ordinary restrooms, there will not be an issue. In some unusual circumstances, however, an accomodation will be needed. For example:

  • If there is a state or local law about restroom usage, that law must be obeyed. (TAW is currently unaware of any state or local laws that would apply in this situation, but check with your local police department to make sure.)
  • If your business uses a public restroom not under the direct control of the business, you should involve the landlord in the discussions.
  • If there are required shower facilities or other situations involving communal disrobing, an accomodation will be necessary.In these cases, exercise creativity, but it is important to keep the outcome safe, convenient, and dignified. Make sure the affected transgendered worker is part of the discussion and buys into the decision.
  • Success Stories

    Lucent Technologies sets the standard for Best In Class workplace restroom practices. See the full story on page 18 of an article by The Diversity Factor.

    At this time, Lucent recommends that transgendered employees use the restroom for the gender they are presenting (unless a state law prevents an employee from doing so.)
    Ohio University found a creative and inexpensive solution.

    Dear Abby has addressed the restroom issue in her column. She has also addressed family support.

    The late Ann Landers addressed the issue in her column. (A followup column appeared Aug 13, 2001.)

    To summarize as stated in the Society for Human Resource Management.

    "The simplest answers are the easiest.  We don't have a lot of complicated rules and expectations.  Simplicity is good: we don't discriminate, we cover medically necessary procedures, use the bathroom that matches how you present . . . . It just works."


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