The Age of Self-Identification

The Age of Self-Identification: Blurred Gender Lines Bring Workplace Bathroom Policies into Focus
Brandon Davis

The Anatomical reference points that classified humans as male or female since time immemorial are no longer sufficient in modern society. People now "self-identify." And this shift to "self-identification"1 and society's struggle to adapt to this social change are prevalent in the workplace and in laws that concern transgender persons. Society's slow adaptation is, at least in some part, due to a misunderstanding of what transgender actually means.

Although there are numerous appropriate definitions of the term "transgender," Webster's dictionary defines transgender as "of, or relating to, or being a person (as a transsexual or transvestite) who identifies with or expresses a gender identity that differs from the one which corresponds to the person's sex at birth."2 Estimates from the Williams Institute indicate that as of 2011, the population of transgender adults in the United States is nearly 700,000, which is 0.3 percent of the U.S. population.3 By comparison, this particular statistic is a very small proportion of the U.S. population; however, transgender issues, societal shifts and workplace rights have had a disproportionate focus in recent political and legal discussions. The primary issue has concerned which restroom facilities a transgender person is allowed to use in the workplace and in public facilities.

Self-Identification Blurs Gender Lines
The legal and political discussions concerning transgender issues are by no means limited to use of restroom facilities. Rather, gender lines are diminishing in multiple areas, and these shifting norms are impacting other facets of society. For example, in sports, where the actual differences in the sexes is historically more apparent and delineated, a transgender woman, Fallon Fox, has been qualified by league officials and permitted to fight biological women in mixed martial arts matches.4 In Alaska, a transgender girl recently won All-State honors in girl's track and field.5 Even the International Olympic Committee is considering guidelines that may allow transgender women to compete in women's events.6

In a nod to the broadening views that are beginning to take place in athletics, many employers are also expanding workplace culture to accommodate shifting gender norms. Target implemented a transgender restroom facilities policy allowing transgender customers and employees to use the restroom facility that most closely corresponds with their gender identity.7 Although certain customers threatened to boycott Target after the transgender policy was implemented, the company's CEO explained that the transgender restroom facilities policy has not affected sales, and the company stands by the policy.8

These changes in gender identification norms should cause employers to question where transgender persons fit in with respect to existing workplace and equal protection laws such as Title VII and Title IX. The U.S. Department of Justice, the U.S. Department of Education, and the Equal Employment Opportunity Commission have set portions of transgender workplace policy through opinion letters and various other guidelines. In general, it is no longer sufficient to provide transgender persons with an alternate individual restroom, because doing so singles the person out as transgender.

Opponents claim that expansive transgender laws allow all individuals unquestioned access to restroom facilities that seemingly do not fit their biological sex or gender identity. In a New York YMCA, for example, a girl's swim team (ages 7-18) quit changing in the women's locker room when a person who was bald, with heavy stubble and a towel at waist level, stepped out of the shower.9 YMCA employees explained that their "hands were tied" based on the expansive New York laws that prevented facilities from designating restrooms by gender.10

While it is true that accommodation laws can be misused, the overwhelming majority of transgender persons simply want to live their lives as the gender with which they identify. The novelty of this social issue, coupled with the fear that transgender-inclusive restroom facilities and locker room policies will be exploited, has caused the law that applies to transgender individuals to remain unsettled. Still, information is now disseminated almost in real time. And public education in this area has improved; which, in turn, has improved the transgender community's stature in society.

Story of Krystal Ettsitty, a Transgender Bus Driver
Krystal Etsitty's case is a prime example of the pace of transgender changes in modern society. Krystal is a transgender woman, born as Michael Etsitty, who was hired by the Utah Transit Authority as a bus operator in 2001.11 Once hired, Michael was required to take a six-week training course where he identified as a man and used the men's restroom.12 After the training course, Michael began driving a bus as an extra operator filling in for the more tenured operators who were out sick or on vacation.13 At this point Michael began wearing makeup and dressing as a woman, and he informed his direct supervisor that he was transgender.14 At that time, Krystal still had male genitalia and was taking female hormones in anticipation of a sex reassignment surgery.15 When Krystal began using female restrooms, she caught the attention of the Operations Manager and the Human Resources Department.16 Krystal was placed on administrative leave after meeting with the Operations Manager and Human Resources Department over concerns about her restroom use.17

Krystal was eventually terminated, and the cited reason for termination was the potential liability for the Utah Transit Authority arising from her restroom usage.18 Krystal sued under Title VII of the Civil Rights Act of 1965,19 alleging she was terminated "because she was a transsexual and because she failed to conform to their expectations of stereotypical male behavior."20 The Tenth Circuit Court of Appeals, in a 2007 decision, affirmed the district court's grant of summary judgment in the Utah Transit Authority's favor, holding that "transsexuals are not a protected class under Title VII...."21 That court explained, "In light of the traditional binary conception of sex, transsexuals may not claim protection under Title VII from discrimination based solely on their status as a transsexual."

Recent Political and Legal Developments
Notwithstanding the Etsitty precedent, seven years later President Obama amended Executive Order 11246 and added sexual orientation and gender identity to the list of protected classes for Federal contractors.23 And laws in place in Colorado, Delaware, District of Columbia, Iowa, New York, Washington and other states allow people to use the restroom based on their gender identification.24 The District of Columbia, for example, requires that every public space have at least one gender-neutral single-occupant restroom available.25

Transgender rights have recently predominated the political and legal atmosphere. States that never would have contemplated such issues are now passing laws to determine which people can use certain restroom facilities. In one of the first high profile political battles, South Dakota governor Dennis Daugaard vetoed a house bill that would require public school students to use the restroom facilities associated with their sex at birth.26 When vetoing the bill, Gov. Daugaard noted that the local schools and school districts can make and have made accommodations available for transgender students.27 Similar bills have been proposed in Illinois, Indiana, Kentucky, Massachusetts, Mississippi, Missouri, Oklahoma, Tennessee, Virginia, Washington and Wisconsin, but it is presently unknown how those states might address this issue.28

In response to a Charlotte, North Carolina city ordinance allowing people to use restroom facilities according to how they self-identify, the state of North Carolina passed a law prohibiting transgender individuals from using restroom facilities according to their self-identification. The law was passed in March, 2016 and it required individuals to use restroom facilities according to their sex at birth.30 The law was passed by a party line vote as Democrats walked out of session and Republicans passed the law with a majority vote.31

However, the North Carolina restroom facilities law is receiving significant pushback in legal and business communities. For example, the National Basketball Association decided that it would not host the 2017 All-Star Weekend in Charlotte and instead moved the game to New Orleans. Additionally, a recent Fourth Circuit decision will likely overrule the North Carolina law altogether.32 In G.G. ex rel. Grimm v. Gloucester Cty. Sch. Bd., the appellate court reversed the district court's decision to dismiss the plaintiff's Title IX claim.33 The plaintiff, G.G., was a transgender boy who was initially allowed to use the boys' restroom at his high schoo1.34 At some point after G.G. began using the boys' restroom, the local school board passed a policy banning him from that facility.35 G.G. claimed that the school board impermissibly discriminated against him in violation of Title IX.36 The Fourth Circuit relied on an opinion letter of the Department of Education, dated January 7, 2016, in deciding that Title IX regulations regarding separate restroom facilities should be based on gender identity.38 In that opinion letter, the Department of Education wrote: "When a school elects to separate or treat students differently on the basis of sex . . . a school generally must treat transgender students consistent with their gender identity."39 The Fourth Circuit affirmed the Department of Education's ability to interpret its own regulations and in doing so allowed for transgender students to use the restroom facilities according to how they self-identify.40 The Fourth Circuit denied rehearing en banc. 41

Further reaffirming the stance on transgender restroom facilities use in schools, the Department of Justice and Department of Education issued a joint "Dear Colleague" letter on May 13, 2016, that outlines how public schools can provide restroom facilities access for all students in a non-discriminatory way.42 Inherent in this "Dear Colleague" letter was a threat to federal funding for a school that does not comply with the mandate:

A school may provide separate facilities on the basis of sex, but must allow transgender students access to such facilities consistent with their gender identity. A school may not require transgender students to use facilities inconsistent with their gender identity or to use individual-user facilities when other students are not required to do so. A school may, however, make individual-user options available to all students who voluntarily seek additional privacy.43

This letter is an extension of the previous interpretations of Title IX regulations, as it prohibits schools from even providing restroom facilities specific to transgender students. The expectations set forth in the letter prevent a school from accommodating a certain student's restroom facilities needs by allowing the student to use an individual restroom, because doing so would single the student out based on gender identity issues.

The Equal Employment Opportunity Commission ("EEOC") also has provided guidance for employers and transgender restroom facilities use under Title VII. The EEOC stated that an employer cannot prevent a transgender person from using the restroom facilities with which they self-identify, nor can an employer condition restroom facilities usage on a full gender transition.45 In line with other federal agencies, the EEOC has held in various administrative opinions, as follows:

[D]enying an employee equal access to a common restroom corresponding to the employee's gender identity is sex discrimination; an employer cannot condition this right on the employee undergoing or providing proof of surgery or any other medical procedure; and, an employer cannot avoid the requirement to provide equal access to a common restroom by restricting a transgender employee to a single-user restroom instead (though the employer can make a single-user restroom available to all employees who might choose to use it).46

Following the "Dear Colleague" letter, eleven states, led by Texas, filed suit on May 25, 2016, claiming the letter had no basis in the law and that the mandates effectively re-write Title IX.47 Further, the states claimed that restroom facility designations were not solely a federal decision and the threat of withholding funds for public schools was unwarranted.48

But recently, a Texas federal judge blocked the Obama administration’s directive on bathroom rights for transgender students in U.S. public schools.49 Thirteen plaintiff states sued the Obama administration, seeking a nationwide injunction to prevent the administration’s transgender bathroom directive from being implemented in public schools.50 According to the presiding judge, the Obama administration’s bathroom guidelines were unenforceable, because they did not provide states with sufficient notice and opportunity for comment before the guidelines were issued.51 In the likely event that this legal and cultural battle over transgender rights reaches our nation's highest court, the current equally-divided court will be called upon to determine whether the recent administrative interpretations of Title VII and Title IX will be upheld.

Agency and Advocacy Guidelines to Transgender Restroom Facility Use
The Department of Labor's Occupational Safety and Health Administration ("OSHA") set forth a guide to restroom access for transgender workers.52 A common theme throughout the guidelines is that transgender persons should not be singled out. The most basic requirement is that all employers under OSHA's jurisdiction provide employees with sanitary and available toilet facilities.53 Separate male and female restroom facilities have historically provided adequate facilities to men and women; but restroom facilities should provide adequate accommodations for all people without regard to sex or self-identification.54 The best policies provide multiple restroom facilities options instead of, or in addition to, traditional male and female restroom facilities, such as single-occupancy, gender-neutral facilities or the use of multiple-occupant, gender-neutral restroom facilities with lockable single occupant stalls.55 OSHA notes that these options allow for all employees—including transgender employees—to decide how much privacy the employee desires.56 If all employees have access to either a single gender-neutral facility or a gender-neutral facility with lockable stalls, then no employee will be singled out for using these types of restrooms.

Further, under the best practices, employees are not asked to provide any medical or legal documentation to prove their gender identity.57 The importance of allowing transgender persons to make their own decisions regarding restroom facilities usage is paramount during a transgender person's transition.58 Transitioning is defined as the process of changing one's gender from the sex assigned at birth to one's gender identity. Transitioning may include "coming out" (telling family, friends, and coworkers); changing the name and/or sex on legal documents; and, for many transgender people, accessing medical treatment such as hormones and surgery.59

The Model Transgender Employment Policy published by the Transgender Law Center outlines the following questions that an employer can ask in preparation for a person's transition:

  • The date when the transition will officially and formally occur. This means the date that the employee will change his or her gender expression, name, and pronouns. The transitioning employee may choose to begin using the restroom and locker room associated with his or her gender identity on this date as well. The transitioning employee will know best when this should occur, as the employee will be able to determine all relevant factors to be considered when choosing this date.
  • Decide how, and in what format, the transitioning employee's co-workers should be made aware of the employee's transition. It is up to the transitioning employee to decide if he or she would like to make some co-workers aware of the transition on a one-on-one basis before it is officially announced.
  • Decide what, if any, training will be given to co-workers.
  • Determine what updates should be made to the transitioning employee's records, and when they will be made.
  • Determine dates of any leave that may be needed for pre-scheduled medical procedures. 60

The main takeaway from these guidelines is that the transitioning employee's co-workers should be made aware of the transition and informed of the dates in which the transition will take place.

Now, remember Krystal Ettsity. Since 2009, people have become far more aware and accepting of transgender persons, because transgender issues have been normalized via social media and television programs. Ms. Ettsity was fired because her employer was not prepared to deal with her transition or her use of restroom facilities that matched her gender identity. Today, her employer likely would be more amenable and able to accommodate her restroom facility preferences. Critically, based on the recent decisions out of the Fourth Circuit and administrative opinions, her firing would likely not be upheld by a reviewing court.

Conclusion and Overall Guidelines
Ultimately, the question is what impact do transgender workplace policies have on employers? The agency policies and guidelines, along with transgender advocacy publications, provide guidance on how a transgender person should be treated. The following bullet points summarize the main guidelines an employer should follow:

· If a person is transitioning, communication between either a direct supervisor or human resources manager is critical.

· Other employees should be made aware of the person's transition and should be given a chance to ask questions regarding the transition in a private setting.

· Other employees should also be informed that as the person transitions, their restroom facilities usage will likely change to the gender with which they identify.

· In regards to restroom facilities, an employer should try to provide as many restroom facilities options as possible (i.e., traditional male/female, gender-neutral single restrooms, gender-neutral multiple stall restrooms, or all gender-neutral restrooms).

· The employer should make all restroom facilities that are not gender-specific (traditional male/female) open to all employees.

· Most importantly, an employer should try to provide a supportive environment to the transitioning person and utilize all reasonable measures to avoid making that person feel singled out.

Brandon Davis is a Partner at Phelps Dunbar and practices in the areas of labor and employment and business, employment-based and family-based immigration. His employment litigation practice includes representing employers in the defense of employment related claims, alleging retaliation, discrimination and workplace harassment under federal and state statutes. Mr. Davis also handles EEOC charges and other administrative complaints through the administrative and judicial process. He has also represented clients on a variety of human resource and risk management issues, and has assisted employers with implementing effective strategies and labor solutions.

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