FAQ About Restrooms & What to Do If You’re Hassled

FAQ About Restrooms & What to Do If You’re Hassled

Q. How do you know which bathroom a transgender person should use?

A. A transgender person should use the restroom that corresponds to his or her gender identity. The medical community (and increasingly, employers, schools and courts) now recognize that it is essential to the health and well-being of transgender people for them to be able to live in accordance with their internal gender identity in all aspects of life-and that restroom usage is a necessary part of that experience.

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Q. What if someone doesn't look masculine or feminine enough to use a particular restroom?

A. 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's gender standards. Moreover, courts have increasingly found that discrimination against transgender people is sex discrimination, so it's not acceptable to institute different kinds of bathroom rules for transgender and non-transgender people.

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Q. Which bathroom should a transgender person use if he or she hasn't had genital surgery?

A. The details about whether or not someone has had genital reconstructive surgery, also called sex reassignment surgery (SRS) don't tell you anything about gender identity or someone's right to use a certain bathroom-and asking about it is a major invasion of privacy, as it involves personal medical information.

It could also be illegal: For instance, if employers were to impose such a "genital standard" for bathroom use, they would need to inquire about the genitals of everyone in that workplace. Imagine the privacy concerns that would raise! The fact is, however, that very few transgender people seek SRS, whether because of cost, personal beliefs, concern about surgical risks or the limitations of available procedures. In a recent survey of 6,450 transgender people in the U.S., conducted by the National Center for Transgender Equality and the National Gay and Lesbian Task Force, fewer than 20 percent of transgender women had undergone genital surgery, and fewer than 5 percent of transgender men had. The U.S. State Department recently recognized this situation in an official way by abandoning requirements that passport applicants document surgical procedures to change the gender listed.

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Q: What should I do if I'm hassled for using the correct restroom?

  • Stay calm so that you can read the situation—and figure out whether or not you’re safe. You can always leave the scene if you feel threatened and come back later with a friend to file a complaint.
  • Report the incident to a manager, owner or someone in charge. Explain to them that you are using the restroom that matches your gender identity.
  • Educate. Show them this toolkit! Explain that transgender people deserve to be treated with respect and dignity and are harmed by being denied access to appropriate restroom facilities.
  • If you are still denied access to the appropriate bathroom, you can file a complaint with your local or state anti-discrimination agency. Denial of access to the appropriate bathroom for transgender people could be considered sex discrimination under the law. You may also live in one of the dozen or so states or over 125 cities and counties where there are specific protections against discrimination on the basis of gender identity.
  • Let us know. Lambda Legal’s Help Desk (toll-free: 866-542-8336 or www.lambdalegal.org/help) takes calls from transgender and gender-nonconforming people who have experienced discrimination.

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Q. Don't unisex bathrooms leave women more vulnerable to being harassed or attacked by men than gender-segregated bathrooms do?

A. This is an argument based completely on a myth: Gender-segregated bathrooms are no more "safe" for non-transgender women than unisex bathrooms, and there are already laws protecting people from criminal conduct in public restrooms. There have been gender identity protection laws covering public accommodations since the 1970s without any sort of increase in violence. In any case, TGNC people are just as at risk for harassment as non-TGNC women, and usually more so. Providing individual bathrooms can be a solution for dealing with these concerns, however, as long as transgender people are not required to use them. 

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Q. Are individual or unisex restrooms better for transgender people than segregated bathrooms?

A. 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 TGNC people, as well as for people with young children and people with disabilities who need help from someone of a different gender.

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Q. What should an employer do when a non-transgender employee complains about being uncomfortable sharing bathrooms with a transgender employee?

A. Employers need to offer an alternative to the complaining employee in such a situation, such as an individual restroom. It isn't the job of the transgender person to do the accommodating. (This was affirmed in a 2002 Minnesota federal appeals court ruling in the case of Cruzan v. Special School District, #1.) 

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Q. Are employers allowed to tell an employee to use a restroom that does not match the person's gender identity or presentation?

A. Employers should make the workplace fair for all employees. The U.S. Occupational Safety and Health Administration (OSHA) forbids employers from placing "unreasonable" restrictions on restroom access. Also, 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.

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Q. Is it okay to propose that a company's restrooms be more trans-friendly?

A. Yes! Advocacy is the most important part of the fight for transgender rights. And if employers adopt pro-trans policies proactively, instead of waiting for a transgender person to pave the way, there's much less chance of having problems down the line. For model restroom policies, click here.

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Q. Can not having restroom access put my health at risk?

Yes. First, “holding it in” may be hazardous to your health. According to the U.S. Occupational Safety and Hazards Administration (OSHA), so-called “delayed voiding” is unhealthy, and workplace policy may not encourage it. This is not to mention the dehydrating effects of trying to avoid using restrooms by limiting intake of liquids, another common strategy for TGNC people navigating uncomfortable bathroom situations in the workplace and at other public accommodations.

Secondly, using appropriate restrooms is an essential part of transitioning. Gender transition is recognized by the medical community as benefiting a transgender person’s psychological well-being and sense of self-fulfillment. One critical aspect of transition, according to the medical protocol set by the World Professional Association for Transgender Health, is to ensure that a transgender person is able to live and be seen and treated by others in a matter consistent with the person’s gender identity. Getting used to using the appropriate restroom is an important part of this process—which is known as the Real Life Experience. Moreover, transgender people must take this step well before proceeding—if at all—to medical interventions involving hormones or surgery.

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Q. Which bathroom is appropriate for someone whose identification doesn't match his or her gender identity?

A. Asking someone to show ID to use a particular restroom is invasive and unnecessary. TGNC people know which bathroom is consistent with their gender identity. Also, it's not that easy for transgender people to change identity documents. Often, you need to hire an attorney, which is financially out of reach for lots of people. And some states will only change ID for those who have had SRS, even though only a minority of trans folks choose or are able to access surgery. Some states, like Tennessee and Idaho, prohibit transgender people born in those states from ever changing the gender on their birth certificates, even if they have SRS.

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FOR MORE INFORMATION: Contact Lambda Legal at 212-809-8585, 120 Wall Street, Suite 1500, New York, NY 10005-3904. If you feel you have experienced discrimination, call our Help Desk toll-free at 866-542-8336 or go to www.lambdalegal.org/help.