Feds: Transgender Bathroom Choice a Matter of ‘Health and Safety’

Department of Labor tells private sector to base bathrooms on gender identity

June 8, 2015

The Department of Labor (DOL) issued instructions for how private businesses should address a transgender individual who wants to use a different bathroom, arguing that allowing transwomen to use the ladies bathroom is a matter of "health and safety."

"The core belief underlying these policies is that all employees should be permitted to use the facilities that correspond with their gender identity," according to the guidance, issued by the DOL’s Occupational Safety and Health Administration (OSHA). "For example, a person who identifies as a man should be permitted to use men’s restrooms, and a person who identifies as a woman should be permitted to use women’s restrooms."

"The employee should determine the most appropriate and safest option for him- or herself," the document said.

The DOL said the guidance is necessary since there are 700,000 transgender adults in the United States, or roughly 0.2 percent of the 318.9 million population.

The document instructs businesses to allow all transgender individuals to use the bathroom of their choice, even if they have only decided to change their name.

"Transitioning is a different process for everyone—it may involve social changes (such as going by a new first name), medical steps, and changing identification documents," the guidance said.

"Under these best practices, employees are not asked to provide any medical or legal documentation of their gender identity in order to have access to gender-appropriate facilities," the agency added.

The DOL said allowing a man to use the ladies restroom because he self-identifies as a woman is a matter of "health and safety."

"Gender identity is an intrinsic part of each person’s identity and everyday life," the document said under the section "Why Restroom Access Is a Health and Safety Matter." "Accordingly, authorities on gender issues counsel that 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."

"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," the DOL said. "Bathroom restrictions can result in employees avoiding using restrooms entirely while at work, which can lead to potentially serious physical injury or illness."

The document also says a separate bathroom for a transgender individual is not acceptable.

The DOL warns that the Equal Employment Opportunity Commission (EEOC), the Department of Justice (DOJ), DOL, and "several other federal agencies" interpret the Civil Rights Act of 1964 to apply to transgender individuals to allow them to use restroom of their choice.

For example, the Army was forced to pay a transwoman damages for not letting her use the ladies' restroom, even though other female employees repeatedly "reported discomfort," by the Office of Special Counsel and the EEOC.

The guidance also states that employers have a duty to protect all employees "from any act or threat of physical violence, harassment, intimidation, or other threatening disruptive behavior that occurs at the work site."

OSHA said they created the guide at the request of National Center for Transgender Equality, the "nation’s leading social justice advocacy organization" for transgender individuals.

The National Center for Transgender Equality pushes GLAAD’s media guide that tells journalists how it can report on transgender issues.

OSHA said the group is an "alliance partner that works collaboratively with the agency to develop products and materials to protect the safety and health of transgender workers."

Published under: Department of Labor