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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.

Friday, November 3, 2006

Newsday article on transgender co-workers in the bathroom

Newsday recently published a question in the business column about the discomfort of a male colleague with sharing a bathroom with a Karen, male-to-female transgender co-worker. The questioner intimates that Karen has transitioned to the female gender role on a full-time basis. He also notes that she engages in disruptive antics in meetings and that he tries to ignore her. Lastly, he saw her coming out of the men's room, which made him very uncomfortable. He asks about the legal regulations regarding the colleague's bathroom use.

It's nice to see the issue being raised in a general circulation newspaper. I think this demonstrates the increasing visibility of transgender employees and transgender issues in the workplace.

The column's writer, Carrie Mason-Draffen, is clearly sympathetic to transgender employees. There are a few points, however, in her answer with which I would quibble. She begins by noting that companies have some legal obligations toward transgender employees, and that some judges have interpreted New York State's Sexual Orientation Nondiscrimination Act, even though it does not specifically mention transgender persons, as extending protections to transgender employees.

This is not quite correct, as it is not SONDA that has been so interpreted, but rather the New York Human Rights Law (section 296(1)(a)). This is a minor point, but Ms. Mason-Draffen's words might be misinterpreted by some as meaning that judges have found that transgender employees are the same as gay employees because both are issues of sexual orientation. As I am sure most of you know, being transgender is an issue of "gender identity," the internal gender identification as male and/or female, whereas being gay is an issue of "sexual orientation," the romantic desire for a partner of a certain sex.

She then quotes Sharon McGowan, staff attorney at the American Civil Liberties Union's Lesbian Gay Bisexual Transgender Project in Manhattan, as saying that New York's laws banning disability discrimination have been interpreted as applying to transgender people. This is not correct as far as I am aware, and I checked Westlaw quite carefully this morning. She also notes that the state's sexual orientation law specifically prohibits discrimination against gays and lesbians in employment and other areas. She does not note any differentiation between gays and lesbians on the one hand, and transgenders on the other. It's not clear what these references to sexual orientation are doing in a letter regarding transgender employees.

She mentions that the employer may have rebuffed Karen's request to use the women's room, and quotes McGowan as saying that the employer has the option of giving Karen access to a single-occupancy rest room or a bathroom connected to someone's office. I find this response problematic. First of all, there is no mention of the impropriety of requiring a transwoman to use the men's room. Second, it suggests that the co-worker's discomfort should require segregation of Karen. Rather, I think it is more appropriate to set aside a separate restroom for for employees who feel strongly that they are unwilling to share a restroom with a transgender employee. By requiring a transgender employee to use a separate restroom, the employer tacitly approves the attitudes of those who object to the presence of transgender employees altogether, encouraging a discriminatory attitude and possibly condoning future harassment.

I do, however, applaud the next suggestion given in the article by Ms. McGowan. She suggests that the company use the situation to educate the staff: to explain what Karen is undergoing and give people the information they need. Personally, I find it very surprising in this day and age of diversity training as a common occurrence, that such a step was not taken.

I note that this blog has covered the bathroom issues before, and you can find them here.

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