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Transgender Bathroom Rights

January 19, 2016 | Andrew Lomo

Over the past year, the transgender rights movement has found momentum. A number of states, counties, and cities have laws with protection for transgender individuals, but the type and extent of the protections varies.

One of the most controversial aspects surrounding the transgender rights issue is the use of restrooms by transgender individuals. Our recent Real Estate Management News Quick Poll indicated a reluctance among respondents to convert to gender neutral bathrooms at this time. There is very little guidance about this coming from courts or government agencies. And, as might be expected, the guidance that is available is often contradictory.

In two recent decisions, an administrative agency in Colorado in 2013 and the Maine Supreme Court in 2014 both ruled that under those states’ gender identity discrimination laws, transgender girls had the right to use girls’ restrooms at their public schools. However, a 2001 Minnesota Supreme Court decision found that even a law prohibiting gender identity discrimination didn’t necessarily protect a transgender woman’s right to use the women’s restroom at work. And a federal appeals court in 2007 upheld the Utah Transit Authority’s decision to fire a transgender bus driver, based on a claim that her employer could be sued for her use of women’s public restrooms along her bus route. In a non-workplace context, a New York appeals court ruled in 2005 that it wasn’t sex discrimination for a building owner to prevent transgender people from using gender identity-appropriate restrooms in a building where several businesses shared restrooms.

According to the ACLU, authorities in some jurisdictions (e.g., Colorado, Iowa, Oregon, Washington State, San Francisco, New York City, and the District of Columbia) have specifically said that denying transgender people the right to use a gender identity-appropriate restroom violates their nondiscrimination laws. Some jurisdictions (e.g., Iowa, San Francisco, and D.C.) go farther and make clear that transgender people can’t be required to prove their gender to gain access to a public restroom, unless everyone has to show ID to use that restroom. Other jurisdictions (e.g., Chicago) continue to allow businesses to decide whether a transgender patron may access men’s or women’s restrooms based on the gender on their ID, which may or may not reflect accurately the person’s gender identity. Some cities (such as Austin, Philadelphia, Washington, D.C., and West Hollywood) have local laws that require single-stall public restrooms to be labeled as unisex.

From a federal agency perspective, the Occupational Safety & Health Administration (OSHA), within the US Department of Labor, has published a “Guide to Restroom Access for Transgender Workers" (PDF). In the guide OSHA states “a person who identifies as a man should be permitted to use men’s restrooms, and a person who identifies as a woman should be permitted to use women’s restrooms. The employee should determine the most appropriate and safest option for him- or herself.” Options include having a single occupancy gender neutral facility and use of multiple occupant gender neutral restroom facilities with lockable single occupant stalls. OSHA requires all employers to find solutions that are safe and convenient and to respect transgender employees. While OSHA guidelines are directed at employers, they would have an impact on how real estate managers satisfy the needs of their tenants who have employees.

This article is an excerpt from the IREM Legislative White Paper, Transgender Bathroom Rights. For more information on current regulations and best practices, download the full white paper here.

About the Author
Andrew Lomo is the Government Affairs Liaison for IREM headquarters, working on industry legislative issues at the national, state, and local levels and assisting IREM Chapters in their public policy needs.

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