Take a look at your Facebook feed and you’re likely to see the U.S. culture wars raging with intensity—on abortion, gay marriage, gun control, you name it. As a hotel operator simply trying to make your guests and associates happy, can you think of anything worse than being caught in the middle of such battles? Unfortunately, it might be unavoidable.
Back in July, a transgender woman held a press conference and sobbed as she accused a big brand operator of discriminating against her based on her gender identity. The Florida resident, a biological man who identifies as a woman, lodged several allegations against the chain, including that her bosses kept calling her “sir” and had asked her to stay out of the ladies’ room.
Beyond this one case, the issue of bathroom access for transgender people is heating up nationally in ways that could force your hotel to take a stand. So how do you go about formulating your policies and procedures here? Start by looking at the big picture.
Federally in the United States, it is true that the prevailing anti-discrimination laws do not specifically cover gender identity. As a result, court rulings on bathroom access for transgender people have been all over the map. Importantly, however, some federal agencies have stepped forward with recommendations for business owners. In June 2015, for example, OSHA issued a guidance clearly stating that employees should have access to restrooms based on their gender identity. The EEOC said much the same earlier in the year as well.
At the state and local level the situation gets more complicated. In liberal-leaning Massachusetts, lawmakers are now considering a bill focused on giving transgender people the right to use restrooms based on gender identity. Supporters describe this as an effort to end hurtful discrimination. Opponents frame it quite differently. One Catholic blog, for example, described the bill as an effort “to make it illegal to keep men from using women’s toilets and showers, and women from using men’s urinals and locker rooms.”
Likewise, the debate is getting ugly in the City of Houston. At issue is a voter referendum on whether the city’s Proposition 1, which among other provisions bans discrimination based on gender identity, should be scrapped. According to reports, the Houston Astros’ Lance Berkman has been showing up in TV ads claiming that the anti-discrimination measure will “allow troubled men who claim to be women to enter women’s bathrooms, showers and locker rooms.” Another Houston group reportedly described transgender people as “perverts” who threaten the safety of women and girls using the ladies’ room.
What should hotel operators do amid these charged political divisions? If you can sidestep the issue altogether, that is a great solution, for sure. And this might just be possible if you operate smaller hotels with single-occupancy restrooms in the lobby and elsewhere in the building. In this situation, all the hotel needs to do is change the sign on single-occupancy restrooms from “men’s” or “women’s” to a gender-neutral designation. Problem solved.
However, properties that have larger, gender-specific bathrooms for multiple occupants face tougher choices. They could try to transform these larger bathrooms into what OSHA describes as “multiple-occupant, gender-neutral restroom facilities with lockable single occupant stalls” (tear out the urinals, in other words, and change the sign). But by taking this approach, they would create a situation that is new and possibly uncomfortable for many Americans—namely, walking into a bathroom in which people of different genders are mingling at the same time.
Thus, your decision to comply with OSHA’s recommendations could backfire: Guests or employees who were uncomfortable with the idea of multiple-occupant, gender-neutral bathrooms could sue you over your decision to create them. On the other hand, if you allow transgender people free access to the gender-specific restrooms of their choice, unhappy guests or employees could go after you for taking this approach as well. The complaint looks something like this: “I took my daughter into the ladies’ room and there was a man dressed as a woman in there!”
For hotels with larger restrooms, then, a “perfect” solution will be hard to find. Striving to reduce risk is all you can do. And as I see it, the greatest legal risk here comes from transgender employees or guests who would feel victimized if denied access to a particular restroom.
This highly motivated interest group is more likely to take expensive and time-consuming legal action against the hotel. And these activists have the federal government on their side. According to OSHA, in fact, stopping transgender employees from using a particular restroom in the workplace is a safety risk. Why? Because the transgender person, now embarrassed, might stop using the restroom at work altogether. This, the agency reasons, could cause the transgender person to develop urinary tract infections or bowel and bladder problems.
Hotels located in liberal-leaning areas might find additional justification for their policies in the form of state laws or municipal ordinances spelling out protections for transgender people. But even for hotels in conservative places, taking a long-term view could be helpful here. Consider the highly publicized gender transition of former Olympic athlete Bruce Jenner into Caitlyn Jenner. The mostly broad-minded media coverage of Jenner’s transformation shows how far American society has come on this issue. Ditto for the landmark Supreme Court decision on gay marriage.
In other words, the momentum in American society appears to be toward granting more freedom to formerly marginalized groups, including transgender people. The safest bet, then, is to work with counsel to make sure your facilities and offices are accommodating toward transgender people per OSHA guidelines. If you lack a bathroom access policy, have your legal team draft one. Also make sure your employees go through sensitivity training that covers the need to be fair-minded and respectful toward transgender colleagues and guests.