Legislation prohibiting discrimination on the basis of gender identity is popping up all around the country. From California’s Senate Bill 703 prohibiting state agencies from entering into certain contracts with contractors that discriminate between employees on the basis of gender identity in the provision of benefits, to the proliferation of cities and counties with nondiscrimination ordinances that protect transgender employees, more employers may be facing gender identity issues in the near future. 

One of the biggest questions employers—and retailers in particular—have in response to this evolving area of the law is how to handle restroom access and access to other facilities that have been traditionally segregated according to the user’s biological sex. The Equal Employment Opportunity Commission, U.S. Department of Justice, and Occupational Safety and Health Administration have indicated that employees should be allowed to use the restroom corresponding with the employee’s gender identity.

There nevertheless remain many sensitive questions with regard to dressing rooms, locker rooms, and other facilities segregated by the user’s biological sex.

  • How does one handle a situation in which a female employee working as a women’s dressing room attendant notifies her employer that she identifies as a male, plans to transition and present as a male, and would like to continue to work as a women’s dressing room attendant?
  • How can an employer provide support to transitioning employees?
  • What should employers do when customers or co-workers question the employer’s support of transitioning employees?