May 2016
Walter J. Liszka, Esq.

For eons it has been well settled that when an Employer has provided separate restroom facilities for those of the male persuasion and those of the female persuasion, that never "the twains would meet." Now, every Employer faces a strange dilemma with regard to this eons old concept. The United States Equal Employment Opportunity Commission (EEOC) has cautioned Employers that they should make absolutely certain that Transgender Workers have access to the restroom facilities that correspond with their gender identity or risk running afoul of Title VII. In point of fact, the Equal Employment Opportunity Commission has not been shy about taking on Transgender Issues in recent years. As part of their 2013 - 2016 Strategic Enforcement Plan, the EEOC has been aggressively litigating the idea that Title VII protections against gender bias clearly extend to gender identity and sexual orientation.

In outlining its May 3, 2016 Fact Sheet (a copy of which can be viewed here: https://www.eeoc.gov/eeoc/publications/fs-bathroom-access-transgender.cfm),which advises Employers of its position that discrimination based on a person's Transgender Status is sex discrimination under Title XII, the EEOC referenced a 2015 Case involving the United States Army in which it held that the Department of the Army had unlawfully discriminated against a transgender woman by refusing her the opportunity to use a women's restroom. Furthermore, in that same ruling, the EEOC also set forth the position that an Employer cannot condition an individual bathroom access on the individual's first providing proof of surgery to coincide with their gender identification.

It is interesting to note that the EEOC is not the only Federal Agency that is attempting to enforce use of restrooms and/or locker rooms based on gender identity. The Department of Justice and the Department of Education have been in the forefront of enforcing this issue in numbers of situations involving School Districts and other Public Entities, including in the State of Illinois with Northwest Suburban Township High School District 211, with whom they concluded an agreement in December based on a complaint of one transgender student who was denied the opportunity to use the girl’s locker room and restroom facilities. It should be noted that on Wednesday, May 4, 2016, a group of fifty-one (51) suburban families filed a lawsuit against High School District 211 and the Department of Education and the Department of Justice alleging that the actions taken by 211 in this Case were violating “student’s privacy and safety” by allowing transgender students to use restrooms and locker rooms based on their gender identity, basically stating that such a decision is a “blatant violation of student privacy.” The litigation’s aim, according to Counsel, Jeremy Tedesco, is to stop the Department of Education from bullying School Districts with falsehoods about what Federal Law requires.

It will be interesting to see how this matter is ultimately resolved through the Court System, but based on the staunch position being taken by the EEOC regarding gender identity and, furthermore, based on the supportive position being taken by the Department of Education and the Department of Justice in the District 211 matter and in the Grimm v. Gloucester City School Board case (transgender male student in Virginia must be allowed to use the boy’s bathroom), the battle lines are clearly drawn.

No one knows what the future will bring, but based on the positions of the EEOC and other Government Agencies, Employers will continue to face the “bathroom dilemma” with regard to Transgender Employees.

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