Workplace Culture

Transgender Bathrooms as a Solution in Search of a Problem

By Jon Hyman

May. 4, 2016

In the blogging world, when you snooze, you lose. Yesterday, my fellow bloggers were all over the EEOC’s publication of guidance on bathroom access for transgender employees:

Here’s the bottom line.

Like OSHA said in similar guidance nearly a year ago, it is illegal to require an employee to use the bathroom of his of her gender of birth, or a single-user bathroom. Instead, an employer must permit a transgender employee to use the bathroom of the gender with which the employee identifies.

Employers, answer me this. Why do we care? If an employee genuinely believes she is female (regardless of whether she was born a male), why do we care if she uses the women’s restroom? This issue is one of the most glaring examples I’ve ever seen of a solution in search of a problem.

I’m certain I have readers who are thinking, “I don’t want those freaks in my bathroom.” Well, this post isn’t for you (or maybe it’s especially for you). You are doing exponentially more harm to the mental well-being of your transgender employee(s) if you force them into the wrong bathroom or segregate them in a single-gender bathroom, than you are doing to your other employees by having them share their bathroom with their trans co-workers. Any other answer to this issue is bigotry, period. And, in 2016, we should be well beyond institutional bigotry of any kind.

Jon Hyman is a partner in the Employment & Labor practice at Wickens Herzer Panza. Contact Hyman at JHyman@Wickenslaw.com.

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