Of Bathrooms, Bias and Blind Spots

Of the twelve investigations I have done involving transgender individuals as either complainants or the subject of complaints, all have involved bathrooms. One would think that, given the confusion, bias, fear and anxiety the subject of gender identity and in particular, transgenderism seem to generate, that the issue would come down to more than facilities for personal hygiene. Nevertheless, the use or non-use of gendered bathrooms seems to be the place where a society’s equal treatment tends to be tested.

In May of this year, the Office of Personal Management (OPM) issued comprehensive guidance to federal employers regarding the employment of transgender individuals. With regards to the use of bathrooms, the guidance states,
“The Department of Labor’s Occupational Safety and Health Administration (DOL/OSHA) guidelines require agencies to make access to adequate sanitary facilities as free as possible for all employees in order to avoid serious health consequences. For a transitioning employee, this means that, once he or she has begun living and working full-time in the gender that reflects his or her gender identity, agencies should allow access to restrooms and (if provided to other employees) locker room facilities consistent with his or her gender identity. While a reasonable temporary compromise may be appropriate in some circumstances, transitioning employees should not be required to have undergone or to provide proof of any particular medical procedure (including gender reassignment surgery) in order to have access to facilities designated for use by a particular gender. Under no circumstances may an agency require an employee to use facilities that are unsanitary, potentially unsafe for the employee, or located at an unreasonable distance from the employee’s work station. ”

This policy, developed in conjunction with the LGTB community, focuses on the need for sensitivity to an employees gender identity, allowing for flexibility during transition, but not drawing the line at whether or not the individual has had sexual reassignment surgery. This is in contrast to current employment practice in the state of Minnesota, which is guided by a Minnesota Supreme Court, in Goins v. West Group, 635 N.W.2d 717 (Minn. 2001), ruled that transgendered individuals cannot claim discrimination if their employers require them to use a bathroom consistent with their biological gender, as opposed to their self image gender. It is important to note that in this case, the term “transgender” was defined as people who “seek to live as a gender other than the biological gender attributed to them at birth, but without surgery. (emphasis added.) While the intention of this post is to provide some practical perspective on this matter, I can’t help but provide my readers with a fairly comprehensive critique of Minnesota’s ruling (and a similar one in NY) ranging from potential conflict to the ADA to the court’s simply not understanding that SRS involves only a very few parts of the body not generally exposed in a public rest room.

This focus on bathrooms speaks to something important; that employers are doing little to educate employees about gender identity. Bathroom fears arise from several misconceptions:

MISCONCEPTION #1 sexual orientation and gender identity are the same thing. They are not. Gender identity refers to the strong and persistent identification of oneself as male or female. Such identity may precede any sexual orientation at all, since it can arise in very early childhood. Sexual orientation, on the other hand, is the romantic or sexual attraction to men or to women or to both. Transgender people, just as people who have not transitioned, may, therefore, have any sexual orientation.
MISCONCEPTION #2 transgender individuals are a threat in the bathroom because they will be interested in looking at the genitals of those whose gender they identify with. This is where ideology meets absurdity. The fact is that the vast majority of people who enter bathrooms have one or two things on their mind — elimination and/or hygiene. Transgender people at work are…at work. They think about their gender no more or no less than anyone else, and are no more or less inclined to have leering on their mind.
MISCONCEPTION #3 People whose sexual orientation is towards the same gender will receive sexual gratification from being in a bathroom with same-gendered people. It’s hard not to be snarky about this one…after all, there seems to be a true absence of workplace-bathroom-crimes-of-passion over the past hundred years while gay and lesbian people have been using same-gendered bathrooms; but let’s not go there. Instead, let’s speak to the obvious. Employers cannot predict what might arouse each of their many employees, but they can, and generally do make clear through their sexual harassment policies that ANY overtly sexual behavior in the workplace such as leering, making advances, following someone into the restroom for purposes of sexual gratification) is considered inappropriate. There is no data to suggest that either gender identity or sexual orientation is a factor in sexually harassing behavior — in fact, the majority of reported sexual harassment is between heterosexual individuals of the same or opposite sex ( a brief nod to Oncale, the Supremes case which recognized same sex harassment by heterosexual men)

And now, we get to the heart of the matter. Bathrooms become the battle ground because employers confuse their employee’s misconceptions with legitimate gripes. This in part is because employers don’t always provide anti-discrimination training that once and for all distinguish CONDUCT from STATUS.

BUILDING THE RIGHT STUFF INTO YOUR ANTI DISCRIMINATION TRAINING

When providing anti discrimination training, I always include a hypothetical such as.
“A devoutly religious employee learns that her new office mate is gay. She objects on religious grounds and asks that the individual office elsewhere.”
I ask the participants to describe what the company should do, and it is here that participants are often stymied between the “religious rights” of the employee and the obligation of the employer. This provides an opportunity to ask people the degree to which employees should be able to identify status preferences in their coworkers, or, for that matter, supervisors to identify status preferences in their employees. I offer up the example, for instance, that a Jewish employee asks not to work with anyone of German descent, or an African American asks not to work with white southerners –or a supervisor will not hire a person from New Jersey because his cousin was robbed by someone from New Jersey (sorry New Jersey.) Quickly, participants grasp that status cannot be the basis for discrimination. This allows me to move into the more sensitive area of transgender employees– and to point out that we cannot ask our employers to “protect” us from other qualified workers based on what we think they might do, but instead, we focus on what they actually do. If someone, for instance, is discussing their sexual activity in detail, or someone is evangelizing in an unwelcome manner, an employer will most certainly respond.

Finally, it is worth clarifying to participants in training that each of us has a set of values that are profound, important and personal. We can acknowledge that for some of us, those values generate strong feelings, biases and blind spots. Those are their values, and an employer has no business trying to change them; however, when they come to work, the organization’s values are the values that must guide them, and should their behavior be inconsistent with the values of the organization, the employee could find themselves disciplined for that behavior, including making statements that are bigoted, prejudicial, based on unfortunate stereotypes or inciting fear or anxiety. Thus, the employer protects them from behavior they object to, and protects everyone from having their status impugned by those who disagree with them.

In this time of economic challenges, full plates, individual and organizational stress, employers must be highly proactive to ensure that the organization fully engages its people, free from the unnecessary and divisive distractions brought about by a lack of education and awareness about diversity issues.