DOJ Weighs In on Transgender Rights

by Amelia J. Holstrom

This week the United States Department of Justice joined a list of entities that have taken a position on the issue of transgender rights.  In mid-April, Target announced that transgender workers and customers could use the bathroom of the gender that they identify with, or their gender identity.    This announcement came only weeks after North Carolina’s governor signed a bill prohibiting such action in that state.  Specifically, the North Carolina law requires individuals to use the bathroom corresponding to their sex, rather than their gender identity.  The public response to these actions by Target and North Carolina has sparked debate about what the law requires.

An individual’s biological assignment at birth is defined as the person’s “sex,” while a person’s “gender” is the person’s sense of being male, female, or some other gender, such as genderqueer or transgender.  “Transgender” refers to someone who has a gender identity that is different from the person’s biological sex at birth.

Although Target and North Carolina have only recently been in the news for their stances of restroom use based on someone’s gender identity, Massachusetts has listed gender identity as a protected class in the state’s anti-discrimination law pertaining to employees since 2011.   Since, employers have had to handle a number of matters involving transgender employees.  As discussed by Attorney Marylou Fabbo in a recent BusinessWest Article (Law Supports Transgender Choice in Workplace Bathrooms), the most frequent issue has been the use of bathrooms in the workplace.   Although there have not been any landmark cases in Massachusetts, it is generally accepted that employers must allow employees to use the restroom that corresponds with that person’s gender identity, and most employers have been doing so.  As Attorney Fabbo explains in the article, this can lead to complaints from co-workers regarding discomfort sharing a bathroom with the transgender employee or complaints from transgender employees regarding harassment.  Employers will have to handle those issues as they arise, but employers can consider bathroom modifications to give restroom options to all employees, no matter what their gender identity, to help address the issue.   As outlined in the BusinessWest article, some options to consider are a single-occupancy, gender-neutral bathroom in a convenient location that no employee is required to use, but instead is available; or multi-stall, gender-neutral restrooms with appropriate stall modifications such as heightened walls and lockable doors.

There is proposed legislation in Massachusetts that would prohibit discrimination against individuals based on their gender identity in places of public accommodation, such as bathrooms.  If passed, the law would protect individuals’ ability to use restrooms corresponding with their gender identities not only in the workplace, but also in places such as malls, hospitals, and restaurants.

Unlike Massachusetts, many states have yet to add gender identity to its list of employee protected classes.  Similarly, under Title VII of the Civil Rights Act of 1964, gender identity is not listed as a protected class.   That, however, has not stopped federal agencies from weighing in on the issue.

For example, in Macy v. Dep’t of Justice, an appeal decision issued by the Equal Employment Opportunity Commission (EEOC) on April 12, 2012, the EEOC found that discrimination against a transgender individual was sex discrimination under Title VII.  Three years later, in March 2015, in another EEOC appeal decision Lusardi v. Dep’t of the Army, the EEOC determined that the denial of an individual’s access to a restroom based on their gender identity was sex discrimination; that the employer was not permitted to limit the employee’s right based on the employee’s failure to undergo or provide proof of reassignment surgery; and the employer could not comply with the law by requiring the employee to use a single-user restroom.  The EEOC did note that the employer could have made a single-user restroom available to all employees, however.

Shortly after the Lusardi decision, Occupational Safety and Health Administration (“OSHA”) issued A Guide to Restroom Access for Transgender Workers.   The Guide indicated that restricting an employee’s use of the workplace restroom to using the restroom associated with the person’s biological sex, rather than the gender identity, or segregating an employee by requesting the person to use a separate restroom, could endanger the safety of employees in the workplace.

The Department of Justice (DOJ) has become the most recent federal agency to weigh in on the issue.  On May 4, the DOJ sent a letter to North Carolina’s governor stating that its controversial new law violates Title VII.  The letter asks the governor to respond by Monday, May 9 and let the DOJ know whether “[it] will remedy these violations . . . by confirming that the State will not comply with or implement” the law.  It also goes on to ask that the governor tell public employees that they are permitted, under federal law, to use the restroom consistent with their gender identities.

Periodically over the last several years, federal courts have weighed in on the issue as well.  Although the EEOC decisions, OSHA guidance, and DOJ letter have little impact on Massachusetts because gender identity has been a protected class for many years here, one thing is certain: the landscape under federal law and in other states is rapidly changing and only time will tell what the outcome(s) will be.

UPDATE:  Since the release of this post on May 6, 2016, the state of North Carolina sued the DOJ on May 9, 2016, accusing the Department of “baseless and blatant overreach” for its position on the issue of transgender rights.  Not to be outdone, the DOJ filed its own lawsuit just hours later arguing that North Carolina’s law “constitutes a pattern or practice of employment discrimination on the basis of sex in violation of Title VII.”  Stay tuned for more developments.

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