- Tips: If you're being hassled in a restroom about your gender expression...
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, employ-ers, 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—restroom usage is a necessary part of that experience.
In Doe v. Regional School Unit, the Maine Supreme Court held that a transgender girl had a right to use the women’s bathroom at school because her psychological well-being and educational success depended on her transition. The school, in denying her access, had “treated [her] differently from other students solely because of her status as a transgender girl.” The court determined that this was a form of discrimination.
Right to restrooms that match one’s gender identity have also been recognized in the workplace and are actively being asserted in public accommodations. In Iowa, for example, discrimination in public accommodations on the basis of sexual orientation and gender identity has been prohibited by law since 2007 through the Iowa Civil Rights Act.
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.
For instance, in Mathis v. Fountain-Fort Carson School District 8, Colorado’s Division of Civil Rights found that denying a transgender girl access to the women’s restroom at school was discrimination. They reasoned, “By not permitting the [student] to use the restroom with which she identities, as non-transgender students are permitted to do, the [school] treated the [student] less favorably than other students seeking the same service.” Furthermore, the court rejected the school’s defense—that the discriminatory policy was implemented to protect the transgender student from harassment—and observed that transgender students are in fact safest when a school does not single them out as different. Based on this finding, it is no longer acceptable to institute different kinds of bathroom rules for transgender and cisgender people.
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 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 25% of transgender women had undergone genital surgery, and fewer than 5% of transgender men had.
The U.S. State Department and the Social Security Administration (SSA) recently recognized this by dropping surgical requirements to change the gender listed on passports and SSA records.
Q: Don't unisex bathrooms leave women more vulnerable to being harassed or attacked by men than gender-segregated bathrooms do?
A: This argument is based on a myth: There is no evidence that gender-segregated bathrooms are “safer” for cisgender women than unisex bathrooms. And besides, there are laws protecting people from criminal conduct in public restrooms. If anything, a concern for safety weighs in favor of bathroom accessibility. Transgender people face a uniquely high degree of harassment—53% of 6,450 transgender people reported being harassed or disrespected in a place of public accommodation in a recent survey conducted by the National Center for Transgender Equality and the National Gay and Lesbian Task Force.
In Mathis v. Fountain-Fort Carson School District 8, Colorado’s Division of Civil Rights found that barring transgender students from gender-segregated bathrooms in accordance with their gender identity may out an individual as transgender and invite the very harassment that a school or employer claims to want to prevent. Providing individual bathrooms can be a solution for dealing with these concerns, as long as transgender people are not required to use them.
Q: Are individual or unisex restrooms better for transgender people than segregated bathrooms?
A: Transgender people should not be singled out as the only people 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.
Q: What should an employer do when a non-transgender employee complains about being uncomfortable sharing bathrooms with a transgender employee?
A: In Cruzan v. Special School District #1, decided in 2002, a Minnesota federal appeals court ruled that it isn’t the job of the transgender person to do the accommodating. Employers need to offer an alternative to the complaining employee in these situations, such as an individual restroom.
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. Currently, 18 states (CA, CO, CT, DE, HI, IL, IO, ME, MA, MD, MN, NJ, NV, NM, OR, RI, VT, WA) and the District of Columbia have employment laws that explicitly protect employees on the basis of gender identity. Moreover, the U.S. Occupational Safety and Health Administration (OSHA) forbids employers from placing “unreasonable” restrictions on restroom access. By insisting that someone use the wrong bathroom, an employer is both violating the employee’s privacy, exposing that employee to harassment by effectively outing him or her as transgender and potentially even compromising the employee’s health (see Two Reasons Why Bathroom Access Is Also a Health Issue).
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. Need ideas for a comprehensive policy? Check out the sidebar on this page regarding the federal government’s Office of Personnel Management’s bathroom policy. For model restroom policies, click here.
Two Reasons Why Bathroom Access Is Also a Health Issue
1. USING APPROPRIATE RESTROOMS IS AN ESSENTIAL PART OF TRANSITIONING.
The most critical aspect of gender transition, according to the internationally-recognized medical protocol set by the World Professional Association for Transgender Health, is to ensure that a transgender person is able to live, be seen and be 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. Moreover, transgender people must take this step well before proceeding—if at all—to medical interventions involving hormones or surgery.
2. “HOLDING IT” MAY BE HAZARDOUS TO YOUR HEALTH.
According to the U.S. Occupational Safety and Hazards Administration (OSHA), delaying going to the bathroom when you need to go is unhealthy, and so, 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.
IF YOU’RE BEING HASSLED IN A RESTROOM ABOUT YOUR GENDER EXPRESSION…
- 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.
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.