On the second day, I attended a panel session on emerging sex discrimination issues. One of the panel lawyers was a transgender woman. We were discussing the difference between sex and gender.
In brief, sex is the state of your genitalia (which is no longer entirely dictated by chromosomes). Gender is what you feel inside.
At that moment, I realized that the sex and gender discrimination laws do not specify that they only protect people born one sex or another.
And there is no place where this was going to be a bigger problem than the bathroom. (Edit: Since writing and publishing this blog in 2015, this has come true.)
I started imagining scenarios where a person in the middle of a sex-transition would have to reassign bathrooms. I could see situations where the women might object, or claim to feel unsafe or sexually harassed. (Edit: This has happened now.)
I could see situations where the transgender person would claim to be harassed, rejected or cat-called by male co-workers, and that becoming a sexual harassment case. (Edit: This has happened now.)
I could see situation where an employer, struggling to make everyone happy, makes no one happy. Perhaps the employer makes a third bathroom for the transgender employee, and that person feels singled out as a result.
The relative population of transgender people is small. But recent publicity regarding their civil rights has expanded the law.
For example, the EEOC ruled in June 2015 that a transgender person has a right to use the bathroom that is consistent with their expressed identity. Policies otherwise are discriminatory and prohibited under Title VII. The EEOC’s position is a harbinger of where the law will go either by courts or Congress.
Sex reassignment surgery is none of the employer’s business, so a person can state their preferred gender and the employer must allow for it, without inquiring as to the state of their genitalia.
There will undoubtedly be other employees who will feel uncomfortable about this. It is fairly predictable that there will be women who feel threatened by a biological man (sex) who identifies as a woman (gender) entering the woman’s bathroom.
It is also predictable that this will create religious accommodation issues. Some religions are stricter about segregation between the sexes than others.
Who knew the potty was so complicated?
As usual, the employer is caught in betwixt and between competing human interests. So what do you do?
Well, at this point, the employer should allow people to use the bathroom of their choice. So the employer is going to have to come up with additional accommodations to avoid religious or sexual harassment allegations.
One such accommodation would be to create a third bathroom that anyone who wishes to be “private” can use. Or get rid of segregation of the bathrooms altogether if that is possible.
For many offices, changing the bathroom construction just won’t be practical. For those employers, you will have to counsel people to get along and navigate disputes through diplomacy. Sometimes you will have to tell an employee to accept the use of the bathroom by a transgender person and to work around it.
The employer should not (and in most cases cannot) challenge someone’s stated gender identity and must treat them accordingly, no matter how it competes with the rights, interests and sensibilities of other employees.
We can all argue about whether this is fair or not. But it’s the facts. On balance, it is much more likely that the transgender person will be the harassed rather than the harasser. So balance your policies towards accommodating the transgender person. And respond carefully to all allegations of harassment or predatory behavior.