Transgender Employees and Restrooms in Texas

This week the media reported on a story regarding a transgender woman and a confrontation at a Planet Fitness location. (You can read the HuffPo story or the Fox News story.) Member Yvette Cormier complained at her local Planet Fitness that a transgender individual was in the women’s locker room. The company has a non-discrimination policy allowing members to use whichever locker room matches their self-identified gender. Cormier then proceeded to warn inform other women that there was a man in the locker room. Planet Fitness subsequently cancelled Cormier’s membership.

The transgender woman entered the locker room to put up her coat and purse and then later retrieved it. The story has subsequently ignited a small political fire.

We’ll leave that political fire to be stoked by others and use this opportunity to discuss these types of situations in a Texas employment context as it relates to employment law from federal law, through Texas anti-discrimination law, down to local anti-discrimination ordinances.

Transgender restroom issues in Texas

Virtually identical situations arise in the workplace where transgender employees either transition after obtaining employment or have already transitioned prior to obtaining employment. Then conflict arises between the employees regarding which restroom transgender employees should use.

Often it is biological women concerned with the presence of a male to female transgender employee using the women’s restroom. These cases have been the subject of employment discrimination litigation for well over a decade. Still, the law on the issue is still not entirely clear. Part of the reason for the lack of clarity is the imperfect fit of federal employment discrimination law and the patchwork of state and local laws.

Federal employment laws and transgender restroom access

Federal law does not specifically prohibit discrimination against transgender employees. Attorneys and judges have crudely fit it for that purpose.

The Title VII of the Civil Rights Act of 1964 prohibits discrimination on the basis of sex. Over time judges and employment attorneys extended it to include how an individual dresses and behaves within gender expectations.

These cases primarily arose from women treated less favorably because they did not tightly fit gender expectations of dressing in a feminine manner or behaving in a demure or submissive manner.

The Supreme Court of the United States weighed in and held that discrimination on the basis of gender expectations violates the anti-sex discrimination provisions of Title VII. This rule has been applied to men who were harassed or otherwise discriminated against for not fitting gender expectations of masculinity.

This same analysis of Title VII has been applied to transgender employees who do not conform to the gender expectations of their birth sex. This has led to federal discrimination suits for transgender discrimination in employment over restroom access and other issues.

Federal court analysis of employment law protections in Texas

The federal courts are not entirely in agreement on this Title VII analysis. Last year a Texas federal court in San Antonio held discrimination against transgender employees was not a form of discrimination prohibited under the sex stereotyping analysis (Eure v. Sage Corp.).

As a result of a growing conflict among the federal courts on the issue, the EEOC has established guidance confirming transgender discrimination is an unlawful form of discrimination under Title VII. This guidance is not authoritative over the courts nor is it the final word on the issue. The EEOC is also pursuing litigation in federal courts on the issue to help create law on the subject which will likely conclude in a Supreme Court decision.

Texas employment laws and restroom access

Texas state law also provides no clear direction on transgender discrimination. Employment discrimination law in Texas is silent on transgender discrimination although in Texas we generally follow federal law on employment discrimination and the state statute closely follows the language of Title VII. Texas state courts have provided little to no analysis of the issue so we must assume that the state law is at least as ambiguous on the subject as federal law and the state law will not be clarified until the federal courts do so first.

However, many cities in Texas have passed anti-discrimination ordinances that prohibit discrimination against transgender people in employment and other public settings. These local anti-discrimination ordinances provide a powerful and clear remedy because they specifically prohibit discrimination on the basis of a transgender status and there is no need to try to fit an anti-sex stereotyping claim to the employee’s situation.

Many of the state’s largest cities have passed such ordinances, including Fort Worth, Dallas and Austin.

Employment laws and restroom access

Even where the law, at any level, prohibits transgender discrimination there is not clear rules how employers must resolve problems.

The Occupational Safety and Health Act (OSHA) requires employers to make convenient restrooms available to employees. It prohibits employers from excluding some employees from restrooms or creating policies that would make restroom access unreasonably inconvenient.

However, there is no clear law whether employers must permit transgender employees to use the restroom of their expressed gender. It is generally agreed that an employer best avoids discrimination claims by allowing employees to do so.

Often the restroom issue is not an exclusive claim for discrimination; it often occurs along with other forms of discrimination in the workplace. The line between what an employer may do and what an employer must do is not clear. Yet. Generally the totality of the employment conditions will drive a discrimination claim against the employer.

The employer’s reason for the policy and the treatment given to employees will be important to an individual claim.

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Remedies to transgender restroom issues in the Texas workplace

Some advocate for the implementation of unisex restrooms to avoid this issue. That is a fine remedy where all restrooms are unisex in the workplace and there is no distinction in use. When a separate unisex restroom is created for transgender employees it creates a separate-but-equal situation. (Texas has not implemented such a rule.)

However, creating a unisex restroom isolates the transgender employee as not quite a member of either sex in the workplace. It chooses the speculative concerns of the other employees over the actual isolation of the transgender employee; and it necessarily creates a discriminatory situation.

That legitimizes the belief that a transgender employee cannot help himself or herself from making sexual advances on colleagues. It may be a better solution than sending the employee to the other gender-identified restroom; but it’s still only a half-solution.

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