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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.

Wednesday, August 9, 2006

Facilities Usage Criteria

Previously, I blogged about a four-step mediation process to be initiated upon notice to the organization that an employee is going to transition. We're on the third step, and today, I will discuss one of the most contentious issues in the the employee-supervisor mediation: facilities usage.

This issue has already been discussed in detail previously, but it's worth reiterating. Because of the cultural preference for sex segregated facilities, a great deal of sensitivity is required in regard to facilities usage. The employee in gender transition may feel that his/her new gender is not being recognized if they are not permitted to use facilities reserved for that gender. On the other hand, co-workers may differ as to the employee’s gender, raising objections to the usage of any facilities whatsoever, perhaps even threatening a sexual harassment lawsuit if they are forced to share the restroom (though, to my knowledge, no such suit has been successful in the courts).

The company, as the employer, is permitted by law to set the terms and conditions of employment, as long as it does not contravene the law. At the same time, the company has an interest in minimal workplace disruption during gender transition, and each workplace transition presents different circumstances. Therefore, facilities usage should be determined based on neutral criteria that allow flexibility but that respect employees in gender transition as well as co-workers. The five criteria (already discussed in detail previously) are as follows:

  • Number of bathrooms within reasonable walking distance
  • Availability of single use or lockable bathrooms
  • Length of employee’s transition
  • Employee’s comfort level
  • Co-worker comfort level
Sex Reassignment Surgery (SRS) should not be a factor in facilities usage determinations for a number of reasons, discussed in detail previously. To my mind, the main reason for not using this as a criterion is that SRS affects only a small portion of the body not usually disrobed in a workplace restroom. SRS does not remove visible androgyny, nor does it remove the knowledge of co-workers that a transgender employee was born in the opposite sex. The source of the concern among co-workers, if any, lies elsewhere, and will not be removed by an SRS requirement. To address this, a separate restroom should be set aside for employees who feel strongly that they are unwilling to share a restroom with a transgender employee. If, on the other hand, it is the transgender employee who is required to use a separate restroom, this tacitly approves the attitudes of those who object to the presence of transgender employees altogether, encouraging a discriminatory attitude and possibly condoning future harassment.

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