Transgender people deserve privacy, dignity in public bathrooms — Maine Opinion — Bangor Daily News: "A proposal to amend the Maine Human Rights Act has the goal of protecting the privacy of the nontransgender public in public bathrooms. This isn’t necessary and, instead, it has the potential to embarrass transgender people and put them at risk of harassment.
The bill, LD 1046, sponsored by Rep. Kenneth Fredette, would exempt businesses and institutions from the discrimination provisions of the Human Rights Act on the use of bathrooms and shower facilities."
As you may recall, there was a recent favorable decision in the Maine courts on trans bathroom usage, which you can read about here.
Showing posts with label Bathrooms and Locker Rooms. Show all posts
Showing posts with label Bathrooms and Locker Rooms. Show all posts
Monday, May 23, 2011
Saturday, April 28, 2007
The Unisex Bathroom - A Crazy Place
While ENDA addresses dressing rooms and shower rooms, rather than bathrooms, I couldn't resist this hilarious video. What prompted me to find it was watching a rerun of Scrubs tonight with my son ("My Philosophy" [2003] ) and finding that it was about having a unisex locker room.
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 transadvocate.com: "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?
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 transadvocate.com: "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?
Monday, November 27, 2006
DC Regulations Prohibiting Gender Identity Discrimination
The D.C. Human Rights Commission has created regulations designed to implement the changes to the DC Human Rights Act that incorporated gender identity and expression made in March of this year. The rules, effective on October 27, 2006, are known as the “Compliance Rules and Regulation Regarding Gender Identity or Expression.” Specifically, the regulations provide guidance to employers, housing, and commercial space providers, public accommodations, educational institutions, and the DC government on the requirements of the law. The regulations ensure that transgender individuals are treated in a manner that is consistent with their identity or expression, rather than according to their presumed or assigned sex or gender. As an example, the regulations direct entities to allow transgender individuals the right to use restrooms, dressing rooms, and other facilities that are consistent with their gender identity or expression.
These regulations are remarkably comprehensive, specific and progressive, even more so than the San Francisco regs or New York guidelines. There are a lot of similarities -- for example, all three prohibit gender identity discrimination and specifically address the foreseeable issues, such as access to restrooms. But only DC requires by regulation that employers permit access to the restrooms that are "consistent with" the employee’s gender identity or gender expression. That means if I identify as a woman, or express my gender as a female (regardless of whether I identify as a man or woman), I must be allowed access to the women's restroom the same as other women.
By contrast, SF's regs say only that employers must provide transgender employees with a bathroom "appropriate" to their gender identity, omitting the term "consistent with" (although that phrase is used elsewhere in the document) . Would a single use bathroom in the basement be okay? I'm not sure, but it's not terribly clear, either. New York City's guidelines merely say that failure to allow use of a restroom consistent with gender identity or gender expression is one of the "factors that suggest that discriminatory conduct related to gender identity has occurred." Since NYC's rules are not regulations, but guidelines, they don't have the force of law. Though it is likely that the NYC Human Rights Commission will take them seriously, it's not clear whether a court would do so. Its status is also in doubt (minor though it may be, to my mind) because NYC has court precedent saying that bathrooms may be segregated on the basis of "biological sex", though only in the NY Supreme Court (the lowest of New York State's court system and not binding on any other courts).
And when it comes to locker rooms, SF and NYC get positively vague. SF says employers only need to make "reasonable accommodations" in this regard and only for "gender identity which is publicly and exclusively asserted" and for which they have ID or a doctor's note. (That last part contradicts another part of the document, which says that asking for proof of gender before a trangender person is permitted access is prohibited.) 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." And NYC again says that not allowing use of a locker room consistent with gender identity or gender expression is a factor "suggesting" discrimination. DC, however, comes right out and says that employers "shall allow" employees the use of dressing rooms "consistent with" not only their "gender identity" but also their "gender expression" and regardless of whether they have ID or a doctor's note (and requiring one is prohibited).
SF's regulatory scheme "strongly urges" that all single-use bathrooms be designated gender neutral, and NYC's guideline "recommends" it, but only DC says that employers "shall" use gender-neutral signage for single occupancy restrooms.
SF and NYC have some language prohibiting harassment, but only DC spells out specific foreseeable scenarios that protect transgender employee privacy:
Interestingly, the DC regs use and define the term "transgender," which very few statutes do because the term is so ambiguous. The regs give a definition that indicates that anyone whose identity or behavior differs from gender stereotypes is transgender. That's pretty broad. Under this standard, is that guy in the office who likes to cook and go to chick flicks transgender? Not sure, but seems like it. The only other place I've seen the term used is in Cincinnati, and theirs was similarly overinclusive, requiring gender characteristics, behavior, and/or self-identification typical of or commonly associated with persons of another gender.
While I realize that the word "transgender" is intentionally inclusive, and is considered an "umbrella term" for all sorts of gender variance, I disagree with those who would define transgender to include every person who engages in some atypical behavior, which includes every last one of us on earth. As the Oxford English Dictionary says "a person whose identity does not conform unambiguously to conventional notions of male or female gender, but combines or moves between these." There is an identity component in there somewhere, I believe.
These regulations are remarkably comprehensive, specific and progressive, even more so than the San Francisco regs or New York guidelines. There are a lot of similarities -- for example, all three prohibit gender identity discrimination and specifically address the foreseeable issues, such as access to restrooms. But only DC requires by regulation that employers permit access to the restrooms that are "consistent with" the employee’s gender identity or gender expression. That means if I identify as a woman, or express my gender as a female (regardless of whether I identify as a man or woman), I must be allowed access to the women's restroom the same as other women.
By contrast, SF's regs say only that employers must provide transgender employees with a bathroom "appropriate" to their gender identity, omitting the term "consistent with" (although that phrase is used elsewhere in the document) . Would a single use bathroom in the basement be okay? I'm not sure, but it's not terribly clear, either. New York City's guidelines merely say that failure to allow use of a restroom consistent with gender identity or gender expression is one of the "factors that suggest that discriminatory conduct related to gender identity has occurred." Since NYC's rules are not regulations, but guidelines, they don't have the force of law. Though it is likely that the NYC Human Rights Commission will take them seriously, it's not clear whether a court would do so. Its status is also in doubt (minor though it may be, to my mind) because NYC has court precedent saying that bathrooms may be segregated on the basis of "biological sex", though only in the NY Supreme Court (the lowest of New York State's court system and not binding on any other courts).
And when it comes to locker rooms, SF and NYC get positively vague. SF says employers only need to make "reasonable accommodations" in this regard and only for "gender identity which is publicly and exclusively asserted" and for which they have ID or a doctor's note. (That last part contradicts another part of the document, which says that asking for proof of gender before a trangender person is permitted access is prohibited.) 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." And NYC again says that not allowing use of a locker room consistent with gender identity or gender expression is a factor "suggesting" discrimination. DC, however, comes right out and says that employers "shall allow" employees the use of dressing rooms "consistent with" not only their "gender identity" but also their "gender expression" and regardless of whether they have ID or a doctor's note (and requiring one is prohibited).
SF's regulatory scheme "strongly urges" that all single-use bathrooms be designated gender neutral, and NYC's guideline "recommends" it, but only DC says that employers "shall" use gender-neutral signage for single occupancy restrooms.
SF and NYC have some language prohibiting harassment, but only DC spells out specific foreseeable scenarios that protect transgender employee privacy:
It's good to provide specific guidance to employers. However, since mistakes in pronoun usage, annoying curious personal questions and whispers behind the back are standard fare for transgender people, I think training is going to be very important for litigation control. Of course, a couple of incidents may not meet the threshhold requirement that the conduct is so pervasive that it "alters the terms of employment," but these things add up quickly.(a) Deliberately misusing an individual’s preferred name form of address or gender-related pronoun;
(b) Asking personal questions about an individual’s body, gender identity or expression, or gender transition;
(c) Causing distress to an individual by disclosing to others that the individual is transgender; and
(d) Posting offensive pictures, or sending offensive electronic or other communications.
Interestingly, the DC regs use and define the term "transgender," which very few statutes do because the term is so ambiguous. The regs give a definition that indicates that anyone whose identity or behavior differs from gender stereotypes is transgender. That's pretty broad. Under this standard, is that guy in the office who likes to cook and go to chick flicks transgender? Not sure, but seems like it. The only other place I've seen the term used is in Cincinnati, and theirs was similarly overinclusive, requiring gender characteristics, behavior, and/or self-identification typical of or commonly associated with persons of another gender.
While I realize that the word "transgender" is intentionally inclusive, and is considered an "umbrella term" for all sorts of gender variance, I disagree with those who would define transgender to include every person who engages in some atypical behavior, which includes every last one of us on earth. As the Oxford English Dictionary says "a person whose identity does not conform unambiguously to conventional notions of male or female gender, but combines or moves between these." There is an identity component in there somewhere, I believe.
Tuesday, November 7, 2006
Locker room suit dismissed
One of the bugaboos that one must deal with in creating transgender policy is the idea that transgender employees will enter the bathroom, the locker room or the shower in order to leer at other employees.
The idea that such would be a common occurrence because of the employee's gender confuses gender identity with sexual orientation. Gender identity is a strong and persistent identification with being male or female, and is not the same as sexual orientation, which is the romantic desire to be with a partner of a specific sex. Thus, transgender women (i.e., those who transition from male-to-female) may be of any sexual orientation (straight, gay or bisexual).
Furthermore, everyone has a sexual orientation, but this is not the same as saying that everyone will stare at or proposition members of the desired sex. Just as straight men and women understand that appropriate behavior in the workplace precludes propositioning other members of the workforce willy-nilly, the same is true of gay and bisexual workers. Therefore, companies that allow transgender workers to use the bathroom or locker room of their new sex are not creating a situation ripe for sexual harassment or sexual harassment lawsuits. A recent case shows that the New Jersey courts agree with this assessment.
In the recently decided case of Opilla v. Lucent Technologies (2006 WL 2787047, Sept. 29, 2006), an employee sued for sexual harassment based on the presence of a transgender woman in the locker room of an on-premises health center provided by her employer, Lucent Technologies (though operated by a separate corporate entity). According to the plaintiff, one of her co-workers who was a transgendered female entered the women's locker room and stared at the plaintiff, who was then dressed only in her underwear. When asked how long the incident lasted, plaintiff testified that "[i]t could have been a minute. It felt like a long time." The transgendered co-worker left after another employee entered the locker room and told her to go change on the "other side."
The plaintiff immediately complained to the manager of the Health Center, who told her that he "didn't know what to do about the situation. He didn't know how to direct which locker room [the co-worker] should go into." But he promised her that he would check with Human Resources and "ask them what he should do." It appears, however, that no further inquiry on this matter, however, was taken by the plaintiff or the manager.
The plaintiff claimed that Lucent was liable for sexual harassment because it permitted transgender women to use the locker room, and in addition, that it was responsible for the alleged actions of the transgender woman in this incident. However, the motion judge referenced the legal requirement that the alleged harassment must "alter the conditions of employment" or "create a hostile working environment. She concluded that the one incident in the Health Center was not "severe or ... pervasive enough to make a reasonable female believe that the conditions of employment were altered and the working environment was hostile or abusive." Hence, she dismissed the discrimination complaint against Lucent.
The judge concluded that since the transgendered employee was not a supervisor, the plaintiff could not maintain a hostile work environment claim against her under the New Jersey Law Against Discrimination. The judge also concluded that plaintiff's common law tort claims against her employer Lucent, and against her co-worker, were barred by the Worker's Compensation Act. The appellate court agreed with the motion judge's conclusions, and the case was dismissed.
One caveat: While the opinion seems to specifically validate a corporate policy permitting locker room access, the appellate court specifically noted that it was not addressing that question. (However, I want to note that I think such a policy is unquestionably legal in most states.)
Another lesson to be learned from this case is: talk to all involved parties when you create policies inclusive of transgender employees. Talk to the vendor providing health club services. Talk to the manager of the health club. Talk to the corporate liaison with the vendor.
I did hear rumor of a similar case involving IBM some years ago, which was dismissed in favor of IBM, though I don't know if there was a written opinion.
In regard to company policy, I believe that the thing to keep in mind is that inappropriate behavior in a locker room (or bathroom) is inappropriate regardless of the gender of the actor. This is especially true after Oncale v. Sundowner, the US Supreme Court case in which it is noted that same-sex sexual harassment is actionable. If such behavior is demonstrated, the actor should be subject to the appropriate corrective action, regardless of gender.
The idea that such would be a common occurrence because of the employee's gender confuses gender identity with sexual orientation. Gender identity is a strong and persistent identification with being male or female, and is not the same as sexual orientation, which is the romantic desire to be with a partner of a specific sex. Thus, transgender women (i.e., those who transition from male-to-female) may be of any sexual orientation (straight, gay or bisexual).
Furthermore, everyone has a sexual orientation, but this is not the same as saying that everyone will stare at or proposition members of the desired sex. Just as straight men and women understand that appropriate behavior in the workplace precludes propositioning other members of the workforce willy-nilly, the same is true of gay and bisexual workers. Therefore, companies that allow transgender workers to use the bathroom or locker room of their new sex are not creating a situation ripe for sexual harassment or sexual harassment lawsuits. A recent case shows that the New Jersey courts agree with this assessment.
In the recently decided case of Opilla v. Lucent Technologies (2006 WL 2787047, Sept. 29, 2006), an employee sued for sexual harassment based on the presence of a transgender woman in the locker room of an on-premises health center provided by her employer, Lucent Technologies (though operated by a separate corporate entity). According to the plaintiff, one of her co-workers who was a transgendered female entered the women's locker room and stared at the plaintiff, who was then dressed only in her underwear. When asked how long the incident lasted, plaintiff testified that "[i]t could have been a minute. It felt like a long time." The transgendered co-worker left after another employee entered the locker room and told her to go change on the "other side."
The plaintiff immediately complained to the manager of the Health Center, who told her that he "didn't know what to do about the situation. He didn't know how to direct which locker room [the co-worker] should go into." But he promised her that he would check with Human Resources and "ask them what he should do." It appears, however, that no further inquiry on this matter, however, was taken by the plaintiff or the manager.
The plaintiff claimed that Lucent was liable for sexual harassment because it permitted transgender women to use the locker room, and in addition, that it was responsible for the alleged actions of the transgender woman in this incident. However, the motion judge referenced the legal requirement that the alleged harassment must "alter the conditions of employment" or "create a hostile working environment. She concluded that the one incident in the Health Center was not "severe or ... pervasive enough to make a reasonable female believe that the conditions of employment were altered and the working environment was hostile or abusive." Hence, she dismissed the discrimination complaint against Lucent.
The judge concluded that since the transgendered employee was not a supervisor, the plaintiff could not maintain a hostile work environment claim against her under the New Jersey Law Against Discrimination. The judge also concluded that plaintiff's common law tort claims against her employer Lucent, and against her co-worker, were barred by the Worker's Compensation Act. The appellate court agreed with the motion judge's conclusions, and the case was dismissed.
One caveat: While the opinion seems to specifically validate a corporate policy permitting locker room access, the appellate court specifically noted that it was not addressing that question. (However, I want to note that I think such a policy is unquestionably legal in most states.)
Another lesson to be learned from this case is: talk to all involved parties when you create policies inclusive of transgender employees. Talk to the vendor providing health club services. Talk to the manager of the health club. Talk to the corporate liaison with the vendor.
I did hear rumor of a similar case involving IBM some years ago, which was dismissed in favor of IBM, though I don't know if there was a written opinion.
In regard to company policy, I believe that the thing to keep in mind is that inappropriate behavior in a locker room (or bathroom) is inappropriate regardless of the gender of the actor. This is especially true after Oncale v. Sundowner, the US Supreme Court case in which it is noted that same-sex sexual harassment is actionable. If such behavior is demonstrated, the actor should be subject to the appropriate corrective action, regardless of gender.
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.
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.
Thursday, October 26, 2006
Transgender employees and outside facilities
We have discussed bathroom issues in this blog quite a bit, but all in the context of bathrooms inside the employer's facilities. What happens when the employee works outside the employer's facilities and has to use the bathroom?
It is an issue that should be considered when creating a transition plan. We have said that the plan should call for contacting the GTL (Gender Transition Leader) when the transitioning employee changes jobs or locations, but it should also call for GTL guidance when the employee works outside the employer's facilities.
This issue is highlighted by the story of Helena Stone, transgender woman and Verizon telephone technician, who was arrested three times over the past two years after using the women's restrooms at Grand Central Terminal, where she was assigned to repair pay phones. Her office in the building has no bathroom, so she was required to use the public restroom.
Stone - who has been transitioning to become a woman over the past 10 years and wears female clothing and make-up - was arrested twice in 2005 and once this year. She was charged with disorderly conduct each time. She said that during one arrest, an MTA cop called her 'a freak, a weirdo and the ugliest woman in the world.' This past January, the third time she was arrested, three male MTA cops entered the women's restroom, searched Stone, then told her she didn't belong there before she was cuffed.
The MTA has dropped all criminal charges against Stone, and reached a settlement on her civil suit, in which the MTA committed to allow people to use the restroom for whichever gender they consider themselves. The agreement also calls for the MTA to sponsor a transgender sensitivity training program for its employees.
One of the intentions of human resources policies, including transgender workplace policies, is to ensure a positive and harmonious workplace environment. Employers who have employees transitioning on the job should look to see if they are working offsite. If so, part of the transition plan should include interfacing with those offsite facilities to locate appropriate bathrooms for their personnel. I note that safe bathrooms within a reasonable distance is a requirement of the OSHA workrules. Failure to arrange for this could result in unsafe working conditions.
It is an issue that should be considered when creating a transition plan. We have said that the plan should call for contacting the GTL (Gender Transition Leader) when the transitioning employee changes jobs or locations, but it should also call for GTL guidance when the employee works outside the employer's facilities.
This issue is highlighted by the story of Helena Stone, transgender woman and Verizon telephone technician, who was arrested three times over the past two years after using the women's restrooms at Grand Central Terminal, where she was assigned to repair pay phones. Her office in the building has no bathroom, so she was required to use the public restroom.
Stone - who has been transitioning to become a woman over the past 10 years and wears female clothing and make-up - was arrested twice in 2005 and once this year. She was charged with disorderly conduct each time. She said that during one arrest, an MTA cop called her 'a freak, a weirdo and the ugliest woman in the world.' This past January, the third time she was arrested, three male MTA cops entered the women's restroom, searched Stone, then told her she didn't belong there before she was cuffed.
The MTA has dropped all criminal charges against Stone, and reached a settlement on her civil suit, in which the MTA committed to allow people to use the restroom for whichever gender they consider themselves. The agreement also calls for the MTA to sponsor a transgender sensitivity training program for its employees.
One of the intentions of human resources policies, including transgender workplace policies, is to ensure a positive and harmonious workplace environment. Employers who have employees transitioning on the job should look to see if they are working offsite. If so, part of the transition plan should include interfacing with those offsite facilities to locate appropriate bathrooms for their personnel. I note that safe bathrooms within a reasonable distance is a requirement of the OSHA workrules. Failure to arrange for this could result in unsafe working conditions.
Tuesday, August 22, 2006
Dear Abby weighs in on bathroom question
DEAR ABBY: I visited a city larger than the one in which I reside and encountered a problem.I was in a women's restroom when a man wearing a wig walked in. It was obvious that this 6-footer, dressed in a floral print dress and high heels, was a man.Should transvestites or transsexuals be allowed to use the ladies' restroom? -- Bewildered in Ada, Okla.
Dear Bewildered: There is a difference between a transvestite and a transsexual. A transsexual is a person who feels trapped in the body of the wrong sex. Before a transsexual is allowed to have gender reassignment surgery, he or she must live for one year in the role of someone of the opposite sex. This includes using the restroom facilities of the opposite gender. It is not against the law, and it was no threat to you.
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Dear Abby is a cultural icon of no little weight. The bathroom question has been discussed previously here from the workplace/legal point of view, but the social etiquette issues have been left out. It's interesting how Dear Abby picks up Judge Grady's transsexual/transvestite distinction and runs with the ball. Perhaps they were good friends in the old days. I don't agree with the "trapped in the wrong body" analogy as a distinguishing characteristic of transsexuals, but it does unquestionably get the point across that this is no mere ogler attempting to get a look at the ladies. However, this doesn't mean that transvestites are attempting to do so, nor does "transvestite" mean "heterosexual man," just as "transsexual" doesn't mean "attracted to men." I note, in looking back at my post on Judge Grady, that I promised to discuss the transsexual/transvestite distinction in light of the Schroer opinion, but never got around to it. I'm tying a string around my finger right now, so expect to see something shortly.
Dear Bewildered: There is a difference between a transvestite and a transsexual. A transsexual is a person who feels trapped in the body of the wrong sex. Before a transsexual is allowed to have gender reassignment surgery, he or she must live for one year in the role of someone of the opposite sex. This includes using the restroom facilities of the opposite gender. It is not against the law, and it was no threat to you.
-----------------------------------
Dear Abby is a cultural icon of no little weight. The bathroom question has been discussed previously here from the workplace/legal point of view, but the social etiquette issues have been left out. It's interesting how Dear Abby picks up Judge Grady's transsexual/transvestite distinction and runs with the ball. Perhaps they were good friends in the old days. I don't agree with the "trapped in the wrong body" analogy as a distinguishing characteristic of transsexuals, but it does unquestionably get the point across that this is no mere ogler attempting to get a look at the ladies. However, this doesn't mean that transvestites are attempting to do so, nor does "transvestite" mean "heterosexual man," just as "transsexual" doesn't mean "attracted to men." I note, in looking back at my post on Judge Grady, that I promised to discuss the transsexual/transvestite distinction in light of the Schroer opinion, but never got around to it. I'm tying a string around my finger right now, so expect to see something shortly.
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).
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
Friday, May 5, 2006
News:"He-she" not biased; Trans MP bathroom issue
Does calling someone a 'he-she' signal job bias?: The U.S. Circuit Court of Appeals for the Sixth Circuit recently heard an appeal from the dismissal of a Title VII employment discrimination case involving a transgender employee. The trial judge said there was not enough evidence of discrimination to bring the case before a jury. The plaintiff had worked at the employer for 17 years without complaint, but after change of management, received 12 reprimands in a year and was fired. The plaintiff brought a witness, a priest working at the department, who testified that the supervisors repeatedly referred to her as a "he-she." The trial judge dismissed the case, ruling that the employer's use of the term "he-she" did not show discrimination. A decision is expected in six months to a year.
Where does a transgender MP go to the bathroom?: An Italian lawmaker suggested in parliament that the transgender MP, Vladimir Luxuria, be required to use a restricted bathroom. Some other Italian legislators have not been particularly friendly either. Alessandra Mussolini, granddaughter of Il Duce, attacked her on state television, saying "better a fascist than a faggot." (Click here for the video) Another group of politicians assaulted her, throwing fennel (in Italian finocchio, a word also meaning "faggot").
Where does a transgender MP go to the bathroom?: An Italian lawmaker suggested in parliament that the transgender MP, Vladimir Luxuria, be required to use a restricted bathroom. Some other Italian legislators have not been particularly friendly either. Alessandra Mussolini, granddaughter of Il Duce, attacked her on state television, saying "better a fascist than a faggot." (Click here for the video) Another group of politicians assaulted her, throwing fennel (in Italian finocchio, a word also meaning "faggot").
Tuesday, May 2, 2006
Issue: Bathroom Law Criticisms
I reported in a recent post on the two published U.S. opinions discussing the effect on facilities usage of statutes prohibiting "gender identity" discrimination. These cases ruled that segregating bathrooms by biological sex did not constitute "gender identity" discrimination. In this post, I will discuss the criticisms of those opinions. I list 7 criticisms here. There are more, but these are the main ones.
- The courts said that transgender bathroom exclusion is based on biological sex, not "gender identity." The defendants did not impose separate rules on transgender persons because the rules affected all persons, transgender and non-transgender. However, critics question whether it is possible to separate the two so neatly. In the case of a transsexual person, whose psychological gender identity is opposite to that of the biological sex, it may not be possible to discriminate based on biological sex without also discriminating based on gender identity. Arguably, since sex and gender are opposites in such cases, honoring one ipso facto means dishonoring the other. Biological sex segregation ignores non-traditional gender identity.
- The courts' interpretations of the statute, which found that they did not apply to bathrooms, gave the statutes a narrower interpretation than their plain words indicate. However, this may have contradicted the legal principle, in effect in both Minnesota and New York, that remedial statutes are to be construed liberally (i.e., not narrowly). In fact, the first section of the Minnesota statute explicitly reiterates the rule: "The provisions of this chapter shall be construed liberally for the accomplishment of the purposes thereof."
- Critics also complain about the courts' failure to recognize the legal principle, in effect in both Minnesota and New York, that the "plain meaning" of the words of a statute are to be used, not a secret meaning divined by the court. The plain meaning of the words of the Minnesota statute apply to all workplace discrimination, without exception. Nonetheless, the Minnesota court found an exception for the workplace bathroom. Furthermore, the Court said that the statute requires proof of sex reassignment surgery, though it makes no apparent reference to it. To the contrary, the statute explicitly says that it applies regardless of "one's biological maleness or femaleness."
- The Minnesota Supreme Court bolstered its unusual interpretation by reference to the legislative history of the statute, saying that there appeared to be no legislative intent to change the cultural prefence for same-sex bathrooms. However, under the usual understanding of the "plain meaning" rule, legislative "intent" is irrelevant unless the words of the statute are ambiguous. The Court pointed to no ambiguity in the words of the statute. Therefore, its reference to legislative intent, aside from the fact that the legislative history is silent on this point, fails to give proper credence to the plain meaning of the statute. The recent Schroer case supports this criticism, noting that, as Justice Scalia wrote for a unanimous US Supreme Court: "it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed."
- The court opinions ignored medical reality by requiring sex reassignment surgery prior to recognition of a new gender identity. This violates the medical standards of care (http://www.hbigda.org/, which prohibit primary genital sex reassignment until an individual has lived for at least one year in the opposite gender role successfully. In addition, although primary genital surgery to create female genitalia is considered routine at this point, the same is not true for surgery to create male genitalia (phalloplasty). Such surgery does not replicate typical male anatomy reliably, causes disfiguring arm scars, and is much more expensive ($50,000+). As a result, most of those transitioning from female to male never have phalloplasty, and most government agencies do not consider it necessary for gender identity recognition.
- The Minnesota Supreme Court's ruling may conflict with the Americans With Disabilities Act. The court said, in effect, that the employer may ask to see a transgender employee's surgical status. Section 12112(d) (1) of the ADA, however, prohibits an employer from requesting post-employment medical examinations and inquiries. See EEOC Enforcement Guidance: Disability-Related Inquiries and Medical Examinations of Employees. For my legal friends, see also Giaccio v. NYC, 2005 U.S. Dist. LEXIS 642; Shaver v. Independent, 350 F.3d 716, 722 (8th Cir. 2003); and Conroy v. NYS, 333 F.3d 88, 94 (2d Cir. 2003).
- Genital surgery that no one will see (at work, anyway) is a red herring issue. The real issues here are comfort with heterosexual norms and homophobia. Visible androgyny -- blurring of sex roles -- raises the specter of homosexuality, which makes old-fashioned judges and businessmen uncomfortable, and they retain the privilege to ignore statutory commands against discrimination.
- One court has found that there is no legal requirement for prohibiting transgender persons from using the public restroom of their new gender. In the Cruzan case, the federal District Court for the District of Minnesota held that it was sufficient to provide a bathroom alternative for any non-transgender employees who prefer not to share the public bathroom with a transgender person. This does not, of course, require employers to take this course. It does, however, give enlightened employers a safe harbor for choosing to do so.
Friday, April 28, 2006
Issue: Legal effect of "Gender Identity" statutes on facilities usage
There are only two published court cases, to my knowledge, discussing whether a statute prohibiting gender identity discrimination affects the right of a transgender person to use the bathroom of their new gender identity. In both cases, one in New York and one in Minnesota, the courts denied the right of the plaintiff to use the bathroom of their new gender identity.
In the 2005 New York case, Hispanic AIDS Forum v. Bruno, an NYC building owner allegedly refused to renew a lease of office space because of the use of public bathrooms by transgender clients of the tenant, a social service agency. NYC law prohibits discrimination based on "gender identity." Nonetheless, the majority opinion held that the law did not require the building owner to honor the gender identity of the Forum's transgender clients for purposes of bathroom use.
"Gender" in the City Code was redefined in 2002 as "a person's gender identity, self-image, appearance, behavior or expression, whether or not that gender identity, self-image, appearance, behavior or expression is different from that traditionally associated with the legal sex assigned to that person at birth."
The court threw the case out because the transgender individuals were not selectively excluded from the bathrooms. Rather, they were excluded on the same basis that all biological males and/or females are excluded from certain bathrooms -- their "biological" sex. The landlord's discrimination for purposes of bathroom use, though it denied transgender individuals recognition of their gender identity, did not discriminate on the basis of their gender identity.
The court referred favorably to the Minnesota Supreme Court's 2001 decision in Goins v. West Group. In that case, a transgender employee claimed discrimination based on her employer's exclusion of her from the women's bathroom. The Minnesota law prohibited employment discrimination based on sexual orientation, defined in part as "having or being perceived as having a self-image or identity not traditionally associated with one's biological maleness or femaleness."
The Minnesota court said that the employer's bathroom rule did not discriminate on the basis of gender identity. The rule contained no reference to gender identity; therefore, there was no discrimination based on gender identity. The Court said that the rule discriminated based on biological sex, not gender identity. Therefore, it did not violate the statute.
Even if the employer's rule were interpreted as gender identity discrimination, the Court questioned whether there was any intent to change the "cultural preference" for same-sex bathrooms. Since there was no legislative history on this point, the court decided that the words of the statute did not apply to bathroom usage.
The Goins court specifically noted that it did not know whether the plaintiff was "biologically" male or female. Although the statute made no reference to a requirement of proof of sex reassignment surgery in order to be protected from discrimination, the court decided that such proof is required in bathroom discrimination cases. It indicated that, upon proof that the plaintiff was "biologically" female, the plaintiff should be permitted to use the women's bathroom. The court said that such proof was required because the employee's case made the claim that the rule had a "disparate impact" on a protected class. The blog format is not a good one for explaining complicated points of law, so suffice it to say that "disparate impact" cases have special rules requiring the complainant to show they have the proper qualifications for the job. Here, the court said that proof of sex reassignment surgery is the "qualification" for using the women's bathroom.
The bottom line on these opinions is that the only two published cases interpreting statutes prohibiting "gender identity" discrimination in the facilities usage context have ruled that these statutes did not prohibit discrimination based on biological sex in the bathroom.
I'll discuss the criticisms of these cases in a separate post.
In the 2005 New York case, Hispanic AIDS Forum v. Bruno, an NYC building owner allegedly refused to renew a lease of office space because of the use of public bathrooms by transgender clients of the tenant, a social service agency. NYC law prohibits discrimination based on "gender identity." Nonetheless, the majority opinion held that the law did not require the building owner to honor the gender identity of the Forum's transgender clients for purposes of bathroom use.
"Gender" in the City Code was redefined in 2002 as "a person's gender identity, self-image, appearance, behavior or expression, whether or not that gender identity, self-image, appearance, behavior or expression is different from that traditionally associated with the legal sex assigned to that person at birth."
The court threw the case out because the transgender individuals were not selectively excluded from the bathrooms. Rather, they were excluded on the same basis that all biological males and/or females are excluded from certain bathrooms -- their "biological" sex. The landlord's discrimination for purposes of bathroom use, though it denied transgender individuals recognition of their gender identity, did not discriminate on the basis of their gender identity.
The court referred favorably to the Minnesota Supreme Court's 2001 decision in Goins v. West Group. In that case, a transgender employee claimed discrimination based on her employer's exclusion of her from the women's bathroom. The Minnesota law prohibited employment discrimination based on sexual orientation, defined in part as "having or being perceived as having a self-image or identity not traditionally associated with one's biological maleness or femaleness."
The Minnesota court said that the employer's bathroom rule did not discriminate on the basis of gender identity. The rule contained no reference to gender identity; therefore, there was no discrimination based on gender identity. The Court said that the rule discriminated based on biological sex, not gender identity. Therefore, it did not violate the statute.
Even if the employer's rule were interpreted as gender identity discrimination, the Court questioned whether there was any intent to change the "cultural preference" for same-sex bathrooms. Since there was no legislative history on this point, the court decided that the words of the statute did not apply to bathroom usage.
The Goins court specifically noted that it did not know whether the plaintiff was "biologically" male or female. Although the statute made no reference to a requirement of proof of sex reassignment surgery in order to be protected from discrimination, the court decided that such proof is required in bathroom discrimination cases. It indicated that, upon proof that the plaintiff was "biologically" female, the plaintiff should be permitted to use the women's bathroom. The court said that such proof was required because the employee's case made the claim that the rule had a "disparate impact" on a protected class. The blog format is not a good one for explaining complicated points of law, so suffice it to say that "disparate impact" cases have special rules requiring the complainant to show they have the proper qualifications for the job. Here, the court said that proof of sex reassignment surgery is the "qualification" for using the women's bathroom.
The bottom line on these opinions is that the only two published cases interpreting statutes prohibiting "gender identity" discrimination in the facilities usage context have ruled that these statutes did not prohibit discrimination based on biological sex in the bathroom.
I'll discuss the criticisms of these cases in a separate post.
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