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Transgender people should use bathroom of gender they identify as, U.S. urges

Toilet sign at the Whitman Walker Clinic signifies a gender-neutral facility. (Photos by Charles Ommanney/The Washington Post)

The federal government is strongly urging employers to give transgender employees access to bathrooms that correspond to their gender identity, marking a new policy front in the fast-moving campaign for transgender equality.

“… It is essential for employees to be able to work in a manner consistent with how they live the rest of their daily lives, based on their gender identity,” the Occupational Safety and Health Administration wrote in a four-page Guide to Restroom Access for Transgender Workers posted last week on the agency’s Web site.

The guide is explicit that restroom access for transgender workers is both a civil rights issue and a health and safety one.

“Restricting employees to using only restrooms that are not consistent with their gender identity, or segregating them from other workers by requiring them to use gender-neutral or other specific restrooms, singles those employees out and may make them fear for their physical safety,” OSHA, an arm of the  Labor Department wrote, calling its guidance “Best Practices” for employers throughout the country.

In some workplaces, “questions can arise… about which facilities certain employees can use,” OSHA said, then explained that someone’s “internal gender identity” may be different from the sex they were assigned at birth. “A person who identifies as a man should be permitted to use men’s bathrooms, and a person who identifies as a woman should be permitted to use women’s restrooms.”

The federal government has ensured this access for transgender workers since 2011. But advising businesses to do the same could generate tension with the business community as a wave of legislation and litigation is making transgender workplace issues a hotly contested legal and cultural issue.

As the transgender movement has become more visible, controversies have roiled school systems and offices over privacy and the appropriate way to handle restroom preferences for those who are shifting genders. Many private-sector companies now have written policies, OSHA noted, the core belief of which is that “all employees should be permitted to use the facilities that correspond with their gender identify.”

Among the many forms of discrimination advocates for transgender men and women say they face on the job, bathroom restrictions have been among the most emotionally painful.

“Transgender people have experienced discrimination in restrooms,” said Sarah Warbelow, legal director for the Human Rights Campaign, a gay and transgender rights group. “It certainly is the lived experience of trans people all over this country.”

The June 1 OSHA recommendation, which does not carry the force of law, came out the same week that former Olympic athlete Bruce Jenner appeared on the cover of Vanity Fair magazine in a new female identity as Caitlin Jenner. But OSHA spokeswoman Laura McGinnis said the policy was developed over several months with the National Center for Transgender Equality.

“By issuing this guidance, OSHA hopes to assist employers in developing their own practices and procedures to ensure that none of their employees will suffer the adverse health effects that can result if toilets are not available when needed,” McGinnis said. A regulation would have been stronger, but it can take seven to 10 years for the agency to set standards through regulation.

OSHA’s stand is part of a broader push by the Obama administration to give protections to lesbian, gay, bisexual and transgender Americans. President Obama signed an executive order last year that prohibits job discrimination against federal LGBT employees and companies that do business with the government.  The Justice Department issued a memo late last year clarifying that sex discrimination bans also prohibit employment discrimination based on gender identity or transgender status.

And the White House has opened its first gender-neutral restroom in what is seen as a symbolic step by the president to show his support.

OSHA says the best possible bathroom setup for employers to provide is single-occupancy, unisex bathrooms with appropriate signs, or bathrooms with multiple “lockable single-occupant stalls.”

A handful of states and the District of Columbia already require that restrooms in public spaces be gender neutral.

An estimated 700,000 adults in the United States are transgender, OSHA says, citing the Williams Institute at the University of California at Los Angeles. Nineteen states plus the District now explicitly prohibit workplace discrimination on the basis of gender identification.

But some statehouses, including those in Florida, Texas, Kentucky and Missouri, have begun to attack restroom access, filing about a dozen bills in the past year to overturn these rights. None have passed.

“But we do expect them to come back,” said Vincent Villano, spokesman for the center for transgender equality. “We still need clear and explicit federal protections that ban these attempts.”

Mike Huckabee, the former Arkansas governor who is seeking the GOP presidential nomination, belittled efforts to make public facilities more accessible to transgender individuals in a speech earlier this year, saying that he wished he could have “found his feminine side” in high school so that he could have showered with girls.

OSHA describes bathroom access as not just a civil right issue but a health and safety one that falls under its jurisdiction as the office that oversees sanitation standards and ensures that employees have access to clean restrooms. For example, if a transgender woman has to use the men’s room, she may fear for her safety. If a transgender person feels colleagues will make him or her uncomfortable using a particular bathroom, the person may avoid using restrooms entirely while at work, creating health concerns, OSHA wrote.

The Human Rights Campaign said about two-thirds of Fortune 500 companies have voluntarily adopted policies to prevent discrimination against transgender employees. But bathroom access appears to be a thorny issue for some employers.

Last week, the U.S. Equal Employment Opportunity Commission sued Deluxe Financial Services, a check-printing company based in Minnesota, for refusing to let a transgender woman use the women’s restroom. The lawsuit on behalf of Britney Austin also alleges that her managers and co-workers intentionally referred to her with male pronouns and made fun of her appearance. It’s the first workplace discrimination lawsuit the agency has filed against a private employer on behalf of a transgender woman.

In a statement, the company told Minnesota Public Radio that the EEOC claim lacks merit and that the company takes the dignity of its employees seriously.

U.S. Chamber of Commerce, which represents the interests of more than 3 million large and small businesses, has not taken a position on OSHA’s recommendation. “This is a guide with best practices,” spokeswoman Blair Holmes said in a statement. “It is not a rulemaking and there is no opportunity for us to provide comments.”

The National Restaurant Association did not respond to a request for comment.

The Austin suit follows a decision by the EEOC in April ordering the Department of the Army to pay damages to a transgender employee, Tamara Lusardi. Lusardi is a disabled veteran who transitioned from male to female on the job in 2010. But supervisor continued to call her “sir” and “he,” and she was told she could not use the same restroom as other female employees. Lusardi was required to use a single-person, gender-neutral restroom out of concerns that other employees might feel uncomfortable sharing a restroom with her.