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This is not legal advice, which can only be given by an attorney admitted to practice law in your jurisdiction after hearing all of the facts and circumstances in a particular case.

Tuesday, May 23, 2006

Issue: Facilities Usage Criteria

In a previous post, I discussed the foreseeable issues that organizational policy on transgender workplace diversity should address. This includes "#4. Clear facilities usage criteria - to spell out specific policy for access to bathrooms, locker rooms and shower rooms, but flexible enough to address varied situations." In this post, I will discuss the "best practices" criteria pertaining to bathrooms.

A portion of my sample gender transition policy for large organizations is set forth in the main link above. It's currently being used (with some modifications) by a Fortune 500 company with which I consulted recently. As you will see, I recommend consideration of five criteria for making these decisions on a case-by-case basis, rather than a bright-line rule. A bright-line rule is inappropriate for the delicate issues involved, and will undoubtedly raise questions in a distributed organization that has locations in both conservative and liberal political environments. It is, however, important to have criteria set forth in the policy, lest the "case-by-case basis" turn into what the lawyers call "arbitrary and capricious decision-making."

1. Number of bathrooms within reasonable walking distance

If there is more than one set of multi-use bathrooms (multi-use = more than one person at a time) within reasonable walking distance, then one of these may be designated as the bathroom to be used by the employee in gender transition. The reasoning here is that co-workers, if they feel uncomfortable using that bathroom, may use others. If, however, there is only one set of multi-use bathrooms, this is not an option.

2. Availability of single use or lockable bathrooms

If there is a single use bathroom, or a multi-use bathroom that is lockable, that may be designated as the bathroom to be used by the employee in gender transition. However, this should not be assumed to be the best permanent option for all concerned. The employee in gender transition may feel that his/her new gender is not being recognized if they are not permitted to use the multi-use facilities. In my experience, most employees going through gender transition are happy to compromise, at least in the beginning, because they understand that facilities usage is a sensitive issue. If, however, the employee is forced to use such facilities against his/her will for a long period of time, particularly if it involves an additional burden on their time, they may view this requirement as discriminatory.

3. Length of employee’s transition

Over time, most co-workers tend to become more comfortable with the employee in gender transition, and the bathroom becomes much less of an issue than it is at the beginning of the process. If the employee is transitioning to living in the new gender within a few weeks, more time may be needed for co-workers to become comfortable. If the employee transition will take place over a few months, there is time to allow co-workers to become sufficiently comfortable to reduce concerns about bathroom usage to a manageable level. It also depends on the local area in which the transition is taking place. The local culture in some areas are extremely tolerant of differences, and gender transition is in the workplace is accepted more quickly. In other areas, the local culture is more traditional in regard to deviations from accepted social norms, and comfort level with gender transition will progress more slowly.

4. Employee’s comfort level

Some employees in gender transition feel more comfortable using a private single-use bathroom. Others feel comfortable using a multi-use public bathroom, and have successfully done so consistently over a period of time. An employee in transition who is hesitant in using the bathroom may convey anxiety to co-workers, causing objections to arise. This comfort level should be taken into account.

5. Co-worker comfort level

In some work environments, all co-workers are comfortable with sharing a bathroom with an employee in gender transition. In other work environments, a reasonable objection will be raised. The work environment should be assessed to determine the likely scenario. This should not, however, be the sole consideration used in deciding on facilities usage, because there will always be varying levels of comfort and discomfort. HR should work to achieve a reasonable comfort level over time, but it should not be assumed that every co-worker must be delighted with the idea before permitting a transgender employee to use the opposite-sex bathroom.
Rather, the importance of this factor
is that it allows HR to prepare appropriate resources to provide guidance to employees who have concerns about the decision.In some environments, conflict over the issue may continue for months after the employee has transitioned. If it appears, after several attempts at mediation over several months, that there is an irreconcilable conflict between the employee’s position on facilities usage and that of management or co-workers, I recommend that the HR group in charge of transition issues make contact with the legal department for their input on an appropriate solution.

NOTE: As you no doubt noticed, I have not included sex reassignment surgery as a factor in the bathroom use determination. There are several important reasons for this, which are detailed in the link above (see Section D).

Lastly, it should be noted that, at some point, the comfort level of the employee in transition and the co-workers usually increases. In addition, the appearance of employees in transition tends to conform more to the expected norms of their new gender with time, increasing co-worker comfort. Lastly, there may be changes to the worksite that change the considerations for facilities usage. The initial decision about facilities usage should be put in place for 30 to 90 days, to be reassessed at the end of that time. Of course, changes in circumstances may be brought up at any time if such changes necessitate modification of the transition plan.

As an interesting comparison, the Human Rights Campaign Workplace Gender Transition Guidelines, which I discussed in a post two weeks ago, handles the issue differently, stating that "Transgender employees will be permitted to use the facilities that correspond to their gender identity. However, usage of reasonable single-occupancy or unisex facilities may be considered for a temporary period during the employee’s transition process or on an ongoing basis. A transitioning employee will not be required to use the restroom of his or her designated sex at birth after he or she has begun transitioning." This could be confusing to some, as it says first that the employee definitively can use multi-use public restrooms, but then says the employee can be restricted to "single-occupancy or unisex facilities." (By the way, what is a unisex facility?)

For those of you wondering about legal positions on facilities usage, I discussed legal cases addressing bathroom issues, and criticisms of those cases in previous posts. There's not much law on the issue at this point, but there soon will be, I have no doubt.

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