The Issue:
Transgendered
people are sometimes denied access to the most basic of public accommodations:
the public restroom. A person in transition, or temporarily
crossdressed, occasionally finds they cannot safely use the restroom
matching their birth sex, yet if they use the restroom matching their
gender presentation, they can be arrested or assaulted.
A
transgendered person who is reasonably presentable and does not cause
trouble rarely has a problem in public. Most other people in the
restroom won't object, unless the person behaves unusually, or uses the
restroom different from their gender presentation.
In the
workplace, however, a transgendered person is likely to be known to be a
transgendered person. People who knew her from the other gender role will
know exactly who and what she is. While most people quickly become
accustomed to the new gender role and do not have a problem with the new
restroom usage, it's not unusual in a large workplace for one or two people to
complain.
It's often
remarked that, whenever transgendered people come out at work, the issue
that always seems to come up is "what restroom will they use?" Restrooms are a mundane part of life, but yet this one issue
causes more discussion than any other aspect of the transition.
Ironically, it's not objections by coworkers that cause the problem,
it's fear among the decision makers that somebody might object.
Fear of
offending someone has led employers to very unfortunate solutions. One
worker was required to get in her car and drive to a nearby hotel (or go
home) to use the restroom. Another had to limit her liquid intake,
because she was threatened by both male and female employees that, if
she used their restroom, she would be beaten to death. Some employers
force the worker to walk long distances to use a single occupancy
restroom, or to hang a sign on the restroom door whenever using the
restroom.
Some
workers have expressed concern about transgendered women using the
women's restroom, because they have been taught that a person they think
might be a man is not allowed to use the women's room. They feel
uncomfortable with that person present in the restroom, not because of
any action by that person, but because of status. This can be put into
perspective by recalling the Southern USA before 1960. There were
separate restrooms for whites and "coloreds." Black people
were not allowed in the white restrooms, not because of any action, but
because of their status. We have gotten past this obvious racial
inequity, and we are now addressing the same issue for transgendered
people.
Decisions
and Rulings:
Employers
facing the restroom issue for the first time are often inclined to apply
the "Principle of Least Astonishment", which is that a person
who presents as a woman will be less astonishing using the women's
restroom than the men's, vice versa for a person presenting as a man.
There may be concern, however, from the corporate Legal department that
another employee may complain.
This
situation has now been resolved by the federal courts. In landmark case
Cruzan vs. Davis, a ruling
was made in June 2002 by a federal appeals court in Minnesota that
an employer is within its rights to instruct a transgendered employee to
use the restroom matching their new presentation, and that if another
employee complains, the company may offer the complaining employee an accommodation
(such a the use of a different restroom by the complaining employee.)
OSHA
requires that all workers have unrestricted access to a convenient
restroom, and has suggested that a walk of more than 1/4 mile is too
far.
(See OSHA's
regulations , and a
clarification.) Indeed, a workers productivity will
be impacted if restroom trips require a long walk.
Recommendations:
Transgender
at Work urges that each newly out transgendered worker be granted access
to a restroom that is safe, convenient, and dignified. Usually, the simplest
solution is the best: use the restroom matching the current
gender presentation. On the first day of the transition, the employee will begin
to use the restroom matching his or her new gender. This decision should
be communicated to all employees with the support of management. In our
experience, when management supports the right to use a
gender-appropriate restroom, other employees go on with their jobs and
quickly forget that there was ever an issue.
In most
cases involving company-owned buildings with ordinary restrooms, there
will not be an issue. In some unusual circumstances, however, an accommodation
will be needed. For example:
If there is a state or local law about restroom usage, that law must be
obeyed. We is currently unaware of any state or local laws that would
apply in this situation, but check with your local police department to
make sure. If your business uses a public restroom not under the direct
control of the business, you should involve the landlord in the
discussions. If there are required shower facilities or other situations
involving communal disrobing, an accommodation will be necessary.
In these cases, exercise creativity, but it is important to keep the
outcome safe, convenient, and dignified. Make sure the affected
transgendered worker is part of the discussion and buys into the
decision.
Success
Stories:
Lucent
Technologies sets the standard for Best In Class workplace restroom
practices. See the EQUAL web site at:
http://www.equal.org/
IBM
also has a web site. See the Eagle at:
http://home.earthlink.net/~eagleibm/
Ohio
University found a creative and inexpensive solution.
Dear Abby
has addressed the restroom issue in her
August 24, 2000, column.
The late
Ann Landers addressed the issue in number of her
columns.
Sunday, March 4, 2001
Thursday, April 12, 2001
Monday, June 11, 2001
Monday, August 13, 2001
Monday, October 29, 2001
The Ann Landers feature is copy write protect and hence we cannot
provide copies of these columns. You can obtain copies of these columns
at your local public library . Just determine which paper has the feature
and ask for the paper for that day. The papers will most likely be store
on film. Ann
Landers often recommended PFLAG ,Parents and Friends of Lesbians and Gays,
as
a good source of information. PFLAG: Ann
would urge any family in this situation to contact PFLAG (Parents,
Families and Friends of Lesbians and Gays). They have many resources
available for transgendered people and their families. Their mailing
address is: PFLAG, 1725 M Street, NW, Washington, DC 20036 and the Web
address is www.pflag.org.
There is also a Canadian PFLAG organization in Toronto. The Canadian
chapter can be found at the following address: PFLAG (Toronto) Chapter, 115 Simpson Avenue, Toronto ON M4K 1A1 and
the Canadian PFLAG web site is WWW.PFLAG.ca.
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