Saturday, April 28, 2007

ENDA: Can I get dressed now?

The text of ENDA, the recently proposed federal Employment Non-Discrimination Act, exempts "shared shower or dressing facilities in which being seen fully unclothed is unavoidable, provided that the employer provides reasonable access to adequate facilities that are 'not inconsistent with' the employee's gender identity" What does this mean? Where am I supposed to put on my pasties?

As I read it, it exempts shower rooms and dressing rooms without private areas, such as stalls with curtains or doors. In such situations, employers are not subject to liability under ENDA if a transgender employee is excluded therefrom. (The language specifically refers to "this Act," so there might be potential sources of liability in state law.)

However, I think most employers with shower or dressing facilities will not fall within this safe harbor because it is common practice today for most shower and dressing rooms to have some stalls for private use, with doors or curtains. If there are such private areas, and being seen fully unclothed is "avoidable," ENDA would apply to prohibit discrimination based on gender identity. Two caveats, however: 1) there is no indication of who would or could be required to use such private areas, and 2) two state courts have ruled that the cultural preference for single-sex facilities trumps statutory language prohibiting gender identity discrimination. I've previously discussed point two about bathrooms and lockers rooms in detail here. For more discussion of these issues generally, click on the label "Bathrooms" at the end of this post.

If there is an exempt shower room or dressing room in a workplace, then employees must get a shower or locker room "not inconsistent with" their self-identified gender. In other words, you can't require a male-to-female transsexual, who has a female gender identity, to use a male-only shower room or dressing room. An employer could permit them to use a female-only room, or could give them a single-person shower room or dressing room. Similarly, a female-to-male transsexual, who has a male gender identity, cannot be required to use a female-only shower room or dressing room. Again, an employer could permit them to use a male-only room, or could give them a single-person shower room or dressing room.

I can understand how some transgender people would be upset by this language. (Here's a graphic example from "You're Just A Tranny And Always Will Be.") If I were a transsexual who had transitioned and had sex reassignment surgery years before my employment, I would not want to be singled out in this way. I think the language could have suited the needs of transgender employees better, but I recognize that the drafters faced some difficult choices. My surmise is this the result of political compromise to avoid the argument that the bill would violate people's right to privacy by requiring them to shower or change with a person of the opposite sex. Interestingly, lawsuits making such claims have failed in the courts so far.

There are some interesting comparisons with the regulations in SF, NYC and DC that I have previously discussed. One point of difference is that ENDA does not address bathrooms at all, only shower and locker rooms. The language of the DC regs, however, turns on a concept similar to ENDA's "not inconsistent with" language - except in reverse. ENDA requires access to facilities "not inconsistent with" the employee's gender identity. DC requires access to restrooms and other gender-specific facilities "consistent with" the employee’s gender identity or gender expression. These expressions are somewhat similar, but not quite. By contrast, SF's regs say that employers must provide transgender employees with a bathroom "appropriate" to their gender identity, but when it comes to locker rooms, need only make "reasonable accommodations" and only for "gender identity which is publicly and exclusively asserted" and for which they have ID or a doctor's note. (As to what's "reasonable" -- lawyers have long known that "reasonable" is a synonym for "what 12 people who couldn't get out of jury duty think is normal.")

Let's look at a hypothetical lawsuit somewhere down the road. Cynthia was born male 30 years ago, but has had a female gender identity since the age of 6 and had sex reassignment surgery fifteen years ago. She has moved from San Francisco to Idaho to be with her dying mother (c'mon, got to make this hypothetical interesting), and has started work in a factory in Boise. Her new employer calls a reference and is surprised to find out that Cynthia is a male to female transsexual. The employer converts an old broom closet into a single-person dressing room, and directs Cynthia to use it. She is barred from using the women's multi-person dressing room which all the other women use because it involves unavoidable nudity. Of course, the employer has a good lawyer who advises not to tell the other workers why this is being done because that would be a breach of medical privacy and start another cause of action altogether. Anyway, Cynthia complains that that this is inappropriate and unreasonable because she is not being given access to the facility consistent with her gender identity. She asks the employer to put up a curtained area so that she can use the multi-person dressing room. The employer refuses her request, and argues that the single-use dressing room is "not inconsistent with" her gender because it is not designated for male-only use. Is the employer subject to liability under ENDA? I don't pretend to have an answer.

Now, it would be easy to criticize the drafters of ENDA, but that would be laying the blame in the wrong place. The truth is that our society as a whole has not yet agreed that gender identity is different from sex, despite the fact that the generally accepted scientific opinion of health professionals says the two are different. So the problem isn't the language of "consistent with" or "inconsistent with" or "appropriate to." It's the fact that a statute always represents a political compromise in order to get passed, and this one is no exception.

More work for the lawyers. And the law professors.

P.S. I forgot I wanted to add a couple of questions for future discussion: What if an employer uses a vendor that owns the shower and dressing rooms? Say, an onsite health club, or even an offsite health club for which the employer pays? And what about sending an employee to a customer's location that has a policy that would violate ENDA if it were owned by the employer?