transgender workers should use whatever bathroom they're comfortable using

Texas, Trangender Workers, and Title VII

The EEOC and Transgender Workers

Transgender people have a rich cultural history around the world.  The United States is no different.  From the people living with diverse genders and gender expression pre-colonization, to the Black and Latina transgender women at the forefront of the fight for civil rights, to the transgender men leading the fight against AIDS, we have always existed, and will always continue to exist.  

Recently, though, the lives and bodies of transgender people have become a hot political topic.  In 2020, foreseeing that transgender workers may face increasing scrutiny at work, the Equal Employment Opportinuty Commission (EEOC) released guidance for certain employers with transgender employees, to make certain that those employers were following the law as it pertains to sex-based discrimination under Title VII.  This guidance recommended permitting employees to use the restroom that they feel most comfortable in.

These guidelines were great for transgender workers and their cisgender coworkers. They prevented unsafe situations–including increased scrutiny, harassment, inappropriate questioning, and assault–that often accompany anti-trans bathroom policies.

Texas Sues

The State of Texas sued the EEOC, claiming that the policy was a misinterpretation of anti-discrimination law.  Texas conceded that laws regarding sex- and gender-based discrimination apply to transgender people, but claimed that employers should be permitted to police the conduct of employees based on what gender the employer believes the employee is, so long as there is no discrimination based on the employee’s internal perception of their own gender.  In essence, the State claims that an employer must permit someone to be transgender, but may choose not to permit the employee to exhibit conduct that is associated with being transgender, forcing that person to materially pretend to be cisgender during the workday.

Why Texas is Wrong

Critics of the Texas lawsuit disagree that conduct associated with one’s gender, and the status of one’s gender, are separable in discrimination cases.  The very nature of sex-based discrimination relies on the perception of one’s sex, and the expected conduct associated with it.  

Furthermore, other courts have largely concluded that Title VII protects against discrimination stemming from a person’s conduct that deviates from sex-based stereotypes, including stereotypes about how transgender people should behave based on their sex assigned at birth.

The EEOC Guidance is Vacated

Judge Matthew J. Kacsmaryk, who was criticized at his nomination for his judicial vendetta against LGBT+ people and women, delivered an opinion that sided with Texas, declaring the EEOC guidelines “unlawful.”  It’s unclear at this time if the decision will be appealed, but in the meantime, both cisgender and transgender workers that were protected under the EEOC guidelines are at increased risk for harassment at work based on their bathroom use.

What You Can Do

There are three major ways that you can help your transgender coworkers during this uncertain time.  

First, advocate for your workplace to voluntarily implement a policy explicitly allowing employees to choose what bathroom they use.  The Transgender Law Center has a sample policy to get your employer started.  The Human Rights Campaign recommends training events to help all employees understand the policy and their rights.

Second, learn more from people in the transgender community about how to remain respectful and culturally sensitive to the transgender people at your workplace.

Third, and perhaps most importantly, practice good bathroom etiquette by minding your business while doing your business.  And don’t forget to wash your hands!

Contact us.

Written by Cecil Mattson 2L of Texas A&M School of Law

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