Ask Lambda Legal: Can My Boss Legally Ban My Transgender Coworker from Using the Restroom?

Q: A transgender work colleague of mine is transitioning to living openly as a woman. After using the women’s restroom without incident for some time, she was suddenly notified she would no longer be able to use the women’s restroom until she proved she had undergone genital surgery because her presence made someone “uncomfortable.” Is this legal? Are there any steps the rest of us can take to advocate on her behalf?

A: Imagine if an employer told any male employee that his private parts didn’t measure up to its standards, and he needed to get surgery to be treated like a “real” man. Or if a boss told a female employee that her breasts were too small, and she needed to get surgery to be treated like a “real” woman. By demanding that your colleague submit proof of genital surgery to show that she conforms to what your employer thinks is appropriate for a woman, your employer is engaging in sex stereotyping, and that is illegal.

No employer gets to impose their sex stereotypes on their employees. And that protection does not stop at the restroom door. Access to appropriate restrooms is an essential element of all workplaces, and one most of us take for granted.

Lambda Legal has filed a friend-of-the-court brief in a similar case in Nevada. The brief urges a federal court in the state to hold that denying transgender employees the ability to use the same restroom as others of the same gender violates federal and state laws against sex discrimination.

The plaintiff in the case is, Brad Roberts, a man who is transgender. When Brad began living openly as a man, he was told by his employer, Clark County School District (CCSD), that he would need to show proof of genital surgery in order to be able to use the men’s room. Though he had worked as a police officer for the district for more than two decades, Brad had to suffer the daily indignity of being banished from the restrooms that other men used—for a year. The literal and figurative message was clear: You are not welcome here.

The discriminatory ban was lifted only after a state civil rights agency investigation found probable cause that CCSD had engaged in discrimination.

With more than 40,000 employees, CCSD is the largest employer in Nevada, and is the fifth largest school district in the country. It continues to insist in court that its enforcement of the discrimination ban was legal, and that all employers should remain free to ban transgender employees from appropriate restroom access.

Lambda Legal remains committed to fighting these discriminatory practices. Brad clearly deserved better treatment, and so does your colleague. Your colleague is the best person to tell you how you can be a good ally to her.  Federal law also prohibits employers from retaliating against employees for opposing discrimination—including where the employee is standing up for a coworker.

If you have any questions, or feel you have been discriminated against in the workplace, contact Lambda Legal’s Help Desk at 1-866-542-8336, or see www.lambdalegal.org/help.