United States: Showdown In The Stalls – The Bathroom, The Government And Your Employees

Last Updated: June 13 2016
Article by Robert W. Ratton III

The first job that I had out of college was as a field archaeologist performing historic and pre-historic surveys across the Southeastern United States. This was no glamorous position. I spent 10 hours a day schlepping through swamps and fields digging holes and running the dirt through a screen. On my first day in the field, I dropped my shovel into the ground and out popped a 10,000-year-old spear point. Even with the passage of time, the object was well-defined with intricate craftsmanship. While the grooves and the markings told a story about technology and culture, this artifact could never convey the pathos of the hunt or conflict between warring tribes. In the next 10,000 years, future grunt laborer archaeologists will drop their shovel into the ground and pull out a toilet seat. While they will gain insight into 21st century waste-removal practices and plastics technology, they will never feel the battle fought over who may occupy the throne.

Over the past two months, the issue of transgender access to bathrooms and locker rooms has sparked a ferocious national debate. The disagreement is over the appropriate restroom for a transgender person. According to Human Rights Watch, transgender is defined as an adjective that means "the gender identity of people whose birth sex (the sex they were declared to have upon birth) does not conform to their lived and/or perceived gender (the gender that they are most comfortable with expressing or would express, if given a choice)." On one side, some groups claim that allowing transgender people to use the bathroom consistent with their present gender identity as opposed to the gender announced at their birth opens the door for molesters and perverts of all sorts to sneak into the women's room for a peek or something worse. This sentiment has been codified into law recently in North Carolina. On the other side, supporters of the transgender community claim that requiring a transgender person to use his or her gender identity at birth as opposed to present gender identity exposes these individuals to dangerous conditions and violates civil liberties.

The fight over who may use the women's room (or men's room, for that matter) is in scorched-earth mode right now. Over one million people have signed a petition against Target's policy of allowing transgender people the ability to choose the restroom in which they are most comfortable. On May 2, 2016, a group of CEOs from nearly 200 major businesses, including old-guard companies as well as tech-based companies such as Apple, sent a letter to North Carolina protesting its recently adopted law that in part requires an individual to use the restroom consistent with the gender on his or her birth certificate.

The Battleground State

When we are looking at the recent fervor swirling around this issue, it is difficult to trace its genesis. Gender-reassignment surgery has been in the American press since December 1, 1962, when the New York Daily Post ran an article about a New Yorker who underwent a sex change – the article was entitled "Ex-GI Becomes Blonde Beauty." According to a report by a demographer at UCLA, over 700,000 individuals presently identify as a transgender, and it is highly unlikely that these individuals all transitioned over the last three months.

Regardless of the event that brought the bathroom issue to the collective consciousness, the spark that that set the issue on fire occurred when North Carolina passed HB2, which established a state policy that required an individual to use government facilities consistent with the gender on his or her birth certificate and removed the power of metropolitan governments to abridge this policy.

The back story to this legal battle plays out like a Russian nesting doll of legislative power. On February 22, 2016, after three hours of debate, the City Council of Charlotte, North Carolina, passed an ordinance that forbids discrimination against LGBT individuals, as well as requires businesses to allow an individual to use the bathroom consistent with his or her current gender identity. At the time of its passage, Governor Patrick McCrory told the Charlotte City Council, "the action of allowing a person with male anatomy, for example, to use a female restroom or locker room will most likely cause an immediate State legislative intervention." On March 23, 2016, the State Legislature followed through on this assertion. The State convened an emergency legislative session that resulted in HB2, the bill at issue, that trumped all local ordinances on the use of bathrooms by transgender individuals. In support of HB2, the Lieutenant Governor of North Carolina, Dan Forest, stated that the Charlotte ordinance "would have given pedophiles, sex offenders and perverts free rein to watch women, boys and girls undress and use the bathroom."

Not to be outdone on the ability of one government body to trump another, the federal government jumped in on May 4, 2016, claiming that the bill violates federal civil rights law. The federal government threatened to pull funding from North Carolina, including the much-revered University of North Carolina, if the state government did not publicly declare that it would not comply with the recently passed legislation. On May 9, 2016, instead of repealing the bill or pulling federal funding, both parties decided that the best course of action was to sue each other, a path that always leads to a quick and amicable resolution....

The two competing legal arguments underscore fundamental issues on the breadth of federal civil-rights law. North Carolina claims, with a fair amount of case law to back it up, that neither sexual orientation nor gender identity are protected classes under federal law. The federal government has taken the position on numerous occasions that Title VII protections should extend to sexual orientation and gender identity. The answer to this question will play out over the next several years in court, amassing a legal bill that will surely send all taxpayers to the nearest bathroom.

In the Workplace

While the state and federal governments fight it out, the publicity from this lawsuit will require that all companies have a coherent policy on the issue. No matter which way you decide to go, there will be unhappy employees. From a practical perspective, enforcing a rule of bathroom by gender at birth has some logistical issues. For example, a manager approaches you regarding several employees who are upset that a co-worker, whom they believe is transgender, is using the women's room. While the co-worker has some rugged mannish features, you, understandably, have never had a conversation with her regarding what genitals she possessed at birth. As the person called upon to come up with an answer, you have a series of unenviable choices. A blanket request that all employees bring their birth certificate to work not only exposes you to information that may be protected, but also assumes that people still have access to a copy of their birth certificate. Without attempting to veer into the utterly absurd, should you have someone capable of inspecting your employees' sex organs to determine that the goods are the original parts? Furthermore, what do you do for the transitioning employee? OSHA recently has put out the mundanely titled "Guide to Restroom Access for Transgender Employees," which concludes that compliance with HB2 would pose a health risk to your transgender employees. According to the Guide, transgender workers are reluctant to use restrooms that do not conform to their gender identity, because of fear of violence and embarrassment. In the Guide, OSHA specifically directs those who have been injured by this a transgender bathroom policy to contact OSHA for investigation into unsafe working conditions.

The Effect

As human resources practitioners and employment attorneys, we work every day with real-time issues. We deal with disgruntled employees and unfilled expectations. We work with hurt feelings and unproductive work places. In the grand scheme of our practice, in the past we rarely have had to deal with these bathroom issues. Of all of my clients, the question of transgender restroom use has come up maybe twice. However, the bathroom bills are representative of a greater national debate that plays out every day in your workplace. The greater issue is how these legislative efforts initiate a national debate on LGBT issues. More than ever before, issues of gender identity and sexual orientation are at the forefront of the national conversation. Regardless of any individual's perspective, the EEOC has fought hard to extend Title VII to sexual-orientation discrimination. The greatest concern is that the incivility in the political theatre will carry over into the workplace. If you choose to allow workplace banter that degrades transgender individuals, you are opening yourself up to be another test case for the EEOC. As with every effort we undertake, this situation demands that we proceed with compassion, patience and respect for varied beliefs in our office.

Originally published in HR Professionals Magazine.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Robert W. Ratton III
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