All employees, including transgender employees, should have access to restrooms that correspond to their gender identity. That’s the takeaway from the Department of Labor’s Occupational Safety and Health Administration’s (“OSHA”) recently published guidance to employers on best practices regarding restroom access for transgender workers.
As a general rule, to prevent the adverse health effects which can result when toilet facilities are not available when employees need them, OSHA requires all employers under its jurisdiction to provide employees with sanitary and available toilet facilities. In many workplaces, employers provide separate restroom and other facilities for men and women. In some instances, questions may arise as to which restroom facilities certain employees, such as transgender employees, should be permitted to use. In response to these questions, OSHA’s new publication answers that employees should have access to restrooms that match their gender identity even when that identity is different than their gender assignment at birth.
The term “transgender” refers to an individual whose internal gender identity is different from the sex assigned to that individual at birth. For example, a transgender man may have been assigned female at birth and raised as a girl, but identify as a man. Many transgender individuals transition to live their everyday lives as the gender with which they identify. Transitioning is a different process for everyone and may involve social changes (such as using a new first name), medical steps, and changing identification or other legal documents. An estimated 700,000 adults in the United States are transgender.
OSHA’s guidance outlines model practices regarding restroom access for transgender employees. The core belief underlying these model practices is that all employees should be permitted to use facilities that correspond to their gender identity. For example, a person who identifies as a man should be permitted to use men’s restrooms, and a person who identifies as a woman should be permitted to use women’s restrooms. Each employee should determine the most appropriate and safest option for him- or herself, and a transgender employee should not be asked to provide any medical or legal documentation of his or her gender identity in order to have access to gender-appropriate facilities. In addition, OSHA indicates that the best employer restroom policies also provide additional options, which employees may choose, but are not required, to use. For example, employers may choose to additionally offer single-occupancy gender-neutral (unisex) facilities and/or multiple-occupant, gender-neutral restroom facilities with lockable single occupant stalls.
Regardless of the physical layout of the worksite, all employers need to find solutions that are safe and convenient and which respect transgender employees.