WHICH BATHROOM FOR TRANSGENDER EMPLOYEES?

Here are the facts. Tamara Lusardi was working for the Aviation and Missile Research Development and Engineering Center in Huntsville, Alabama.  As a known transgender employee, the agency forced her to only use a single-use restroom. When it was out of order and she used the women’s room, she was repeatedly confronted by a supervisor and was often referred to by her former male name and with male pronouns. She filed a complaint with the U.S. Special Counsel and EEOC. Here is what happened.

First, last October the Special Counsel’s office announced that the supervisors’ behavior was, “sufficiently frequent, pervasive, and humiliating” to the point of “constitut[ing] discriminatory harassment” that “served as a “constant reminder that she was deprived of equal status, respect, and dignity in the workplace.”  That was the first time any federal agency declared that anti-discrimination laws and regulations protect transgender federal employees. It ordered the agency to stop the offensive treatment, but that is all. On April 1, EEO issued its decision finding illegal discrimination against Tamara and ordered the agency to pay compensatory damages and likely attorney fees. Moreover it stated its policy on bathroom assignment events to be as follows:

This case represents well the peril of conditioning access to facilities on any medical procedure. Nothing in Title VII makes any medical procedure a prerequisite for equal opportunity (for transgender individuals, or anyone else). An agency may not condition access to facilities — or to other terms, conditions, or privileges of employment — on the completion of certain medical steps that the agency itself has unilaterally determined will somehow prove the bona fides of the individuals’ gender identity. On this record, there is no cause to question that Complainant — who was assigned the sex of male at birth but identifies as female — is female. And certainly where, as here, a transgender female has notified her employer that she has begun living and working full-time as a woman, the agency must allow her access to the women’s restrooms.