OSHA's best practices guide on restroom access for transgender workers (https://www.osha.gov/Publications/OSHA3795.pdf), released June 1, endorses as a “core principle” that all employees, including transgender employees, should have access to restrooms consistent with their gender identity.
OSHA defines a transgender employee as one who has adopted an internal gender identity that is different from the sex assigned to him or her at birth. Thus, an individual born and raised female, but who now identifies as male, and an individual who was born and raised male, but who now identifies as female, should be accorded restroom access in accordance with their current identity, according to OSHA.
Altering one’s birth sex is not a one-step procedure. The process is complex and takes significant time. The transitioning process “may involve social changes (such as going by a new first name), medical steps, and changing identification documents,” said the agency. OSHA also noted that a 2011 UCLA study found that about 700,000 individuals in the U.S. now identify as transgender. “The employee should determine the most appropriate and safest option for him- or herself,” the agency said.
OSHA described “model practices” adopted by some employers that respect the core principle, including additional options for access, such as single-occupancy or unisex facilities, which employees may choose to use.
“Under these best practices, employees are not asked to provide any medical or legal documentation of their gender identity in order to have access to gender- appropriate facilities,” OSHA said. “In addition, no employee should be required to use a segregated facility apart from other employees because of their gender identity or transgender status.”
OSHA stakes claim to the issue by asserting such restroom access is a matter of safety and health. According to the agency, transgender employees may fear for their physical safety if they are limited to restrooms inconsistent with their gender identity or if they are segregated from other workers by being required to use gender-neutral or other specific restrooms.
There also can be health consequences, according to the agency. “Bathroom restrictions can result in employees avoiding using restrooms entirely while at work, which can lead to potentially serious physical injury or illness,… [including] urinary tract infections and bowel and bladder problems,” OSHA said.
To add teeth to its guidance, the agency said its sanitation standard (29 CFR § 1910.141) has been “consistently interpreted” not only to require that employers provide employees with prompt access to sanitary facilities, but also that employers in no way impose unreasonable restrictions on employee use of toilet facilities. In addition, following court rulings, several federal agencies have interpreted bans on sex discrimination in federal statutes, including Title VII of the 1964 Civil Rights Act, to prohibit discrimination on the basis of gender identity or transgender status, according to the agency.
Jackson Lewis attorney Nicholas Murray explains that “some states have pro-actively adopted regulations that allow employees to use the restroom that matches their gender identities. In addition to complying with OSHA best practices, employers should consult state law and local ordinances on the topic.” States with specific laws or regulations concerning restroom access include Colorado, Oregon, Delaware, Iowa, Vermont, and Washington, as well as the District of Columbia.