On August 18, 2016, the General Services Administration issued a Federal Management Regulation bulletin clarifying that the nondiscrimination requirement includes gender identity as a prohibited basis of discrimination under the existing prohibition of sex discrimination for any facility under the jurisdiction, custody, or control of the GSA. This interpretation is aligned with other agencies such as the U.S. Equal Employment Opportunity Commission, the Department of Education, and the U.S. Department of Justice. Previously, the EEOC had clarified that discrimination based on transgender status is sex discrimination in violation of Title VII (Macy v. Dep’t of Justice, EEOC Appeal No. 0120120821, 2012 WL 1435995 (April 12, 2012)) and then further ruled that denying an employee equal access to a common restroom corresponding to the employee’s gender identity is sex discrimination, that an employer cannot condition this right on the employee undergoing or providing proof of surgery or any other medical procedure, and an employer cannot avoid the requirement to provide equal access to a common restroom by restricting a transgender employee to a single-user restroom instead (Lusardi v. Dep’t of the Army, EEOC Appeal No. 0120133395, 2015 WL 1607756 (Mar. 27, 2015)).
The GSA now requires federal agencies to allow individuals to use restroom facilities and related areas consistent with their gender identity. The self-identification of gender identity by any individual is sufficient to establish which restroom or other single-sex facilities should be used. Transgender individuals do not have to be undergoing or have completed any medical procedure, nor can they be required to show proof of surgery to be treated in accordance with their gender identity and obtain access to the restroom corresponding with their gender identity.
While this rule does not extend to the private sector, it may serve as a model for state and local governments and eventually to private entities. This will continue to be an area of law for clients to keep an eye on, particularly in light of the passage of the North Carolina law banning transgender individuals from using public restrooms that do not match the sex on their birth certificates.
The bulletin may be read here.