In recent weeks, bathroom access for transgender individuals has been making national headlines. On February 22, 2017, the Trump administration officially withdrew prior joint-guidance from the Department of Education and Department of Justice mandating public schools to allow transgender students to utilize bathrooms and other facilities consistent with their gender identity or, by implication, risk losing federal funding. At the same time, the United States Supreme Court is set to hear oral argument next month on the case brought by Gavin Grimm, a transgender student from Virginia challenging the Gloucester County School Board policy of requiring students to use either a unisex restroom or the restroom consistent with their biological sex as opposed to their gender identity. In light of these developments, all eyes are on the Equal Employment Opportunity Commission to determine whether it will retreat from its current policy position that Title VII’s restriction on “sex” discrimination includes a prohibition against discrimination based on sexual orientation and gender identity despite the absence of such specific language in the statute.
These issues, however, have been long-settled in New York City. Since 2002, the NYC Human Rights Law has prohibited discrimination based on gender identity and gender expression in the workplace, in public places and in housing. This prohibition against discrimination extends to transgender individuals—a person whose gender identity does not necessarily match with the sex assigned to them at birth. In an effort to raise awareness, the NYC Commission on Human Rights, in conjunction with the office of NYC Mayor Bill de Blasio, instituted a print and video ad campaign this past year, entitled “Look Past the Pink and Blue,” informing individuals of their right in NYC to utilize bathrooms and other facilities consistent with their gender identity. The message from this campaign is clear: “Use the restroom consistent with who you are. In NYC, it’s the law. No questions asked.”
This affirmative educational campaign followed closely on the heels of the NYC Commission’s extensive legal enforcement guidance on preventing discrimination on the basis of gender identity or expression. In this guidance, the NYC Commission on Human Rights provided a litany of “bold and explicit examples of violations” and, for employers, set forth a number of best practices with respect to ensuring non-discrimination in the workplace based on gender identity or transgender status. For example, employers are guided to address an employee with the employee’s preferred name, pronoun or title, without the need for supporting documentation. Consistent with the above, employers cannot prohibit employees from utilizing single-sex facilities, such as bathrooms or locker rooms, based on their gender. Per the NYC Commission on Human Rights, employees are entitled to use the facilities consistent with their gender identity —even if that gender identity is not consistent with their biological sex. While not specifically set forth in any law or regulation at present, the NYC Commission on Human Rights recommends that employers post a sign outside unisex restrooms stating: “Under New York City Law, all individuals have the right to use the single-sex facility consistent with their gender identity.”
If you are doing business in NYC, it is important to ensure that your employment policies and access to public facilities are consistent with the provisions of the broad and inclusive NYC Human Rights Law.