Cross-Dressing Requirements
fnord72
6 Posts
We recently had an applicant that was a cross-dresser. We are a white-collar office environment located in Arizona. This raised a couple of questions within our HR department about dress codes and use of bathrooms.
What laws/regs are there governing A) a dress code that required gender-appropriate clothing in the work place, 
requiring any employee to use the bathroom matching their gender.
Our corp attorney said we can not require either (the attorney has given bad advice, and no, I don't know why they are still being used).
I would hope that requiring people legally male to not be able to use a women's rest room as common sense, our attorney differs.
Please provide link/reference for any regulatory information.
Thanks!
Comments
a good resource is the human rights campaign which has model guidelines ...
http://www.hrc.org/documents/HRC-Workplace-Gender-Transition-Guidelines.pdf
there is also information on federal and state discrimination laws on hr.blr.com ...
http://hr.blr.com/analysis.aspx?topic=25
It is my understanding that crossdressers have their sexual orientation and gender identity as males and do not identify as females, so they probably would want to use the men's restroom.
If you have more than two restrooms, I would suggest that have one not be identified by sex. We have a small restroom with one toilet here that is for anyone to use.
I think there is also an issue if the workplace restrooms are open to the public (customers) or not.
In New Jersey, under the law against discrimination for gender iIdentity or expression, it says that people should be admitted to places of public accommodation which by tradition are reasonably restricted to one sex (including restrooms, dressing rooms at beaches, etc.) based on their gender identity.
You probably should call your state department of labor if you hire the applicant to make sure you will be in compliance.
Recently there was an article on SHRM that addressed this.
There is no explicit federal protection against discrimination for transsexual persons, and transsexuals are specifically excluded from the federal Americans With Disabilities Act (ADA). In 1989, the U.S. Supreme Court held that discrimination based on nonconformity to traditional sex stereotypes is a violation of Title VII of the Civil Rights Act. Since 1996, several circuit courts and district courts have recognized that discrimination on the basis of gender nonconformity and/or transgender status is a form of discrimination on the basis of sex. Although it has not been tested in court, the constitutionality of the exclusion of transsexuals from the ADA is in question.
The rest of the article is posted here.
http://www.shrm.org/hrresources/WHITEPAPERS_Published/CMS_005246.asp
Pam: I'm not sure that crossdressers think of themselves as transsexuals; there is a distinction.
[quote user="BarbieW"]I agree that this is a state law issue. I know of one situation where a discrimination charge was filed over the company's refusal to let a man in the process of having a sex change use of the womens' bathroom. Different state, but seems like something to look into before making a decision. [/quote]
I've run into this situation a few times over the last 3 years and there are some serious areas of exposure for employers (differing in magnitude by state) that will not go away without statutory remedy or guidance from the courts. Personally, I try to avoid generating test cases by our policies and practices. Lawyers I've consulted seem to generally agree that it's best to let cross gendered individuals (in transition or not) use the bathroom that coincides with their gender identity. Unfortunately, they also generally seem to throw up their hands when I ask them what to do when an outwardly biologically male individual using the womens' restroom with the Company's consent results in a harassment claim from outwardly biologically female employees. When you throw in state protections for cross gendered individuals that may lead to suits against the employer for failing to permit use of the facilities with which an individual gender-identifies, the employer is at risk either way.
The best practices I'm aware of are also not risk-free.
Agree strongly that a person needs to use the restroom that corresponds with their gender identity. Think about it, do you do a gender check when you hire someone? Do you know for sure that the snappily dressed woman down the hall has the "parts" to match that gender identity?
Illinois and many other states now have laws that protect sexual orientation and gender identity. (Illinois law spells out gender identity in the definitions, not in the main part of the act) I've worked with an organization recently where an individual has transitioned from male to female - she handled the process well, "planfully" - laying the groundwork for her supervisor, for HR, and it went very smoothly. Other cases, where the indiviudal didn't plan as well, have not gone as smoothly.
The Human Rights Campaign (www.hrc.org) has a Web page devoted to "the restroom issue" and while it suggests that employers grant restroom access according to an employee's full-time gender "presentation," it acknowledges that this a very sensitive issue.
HRC does mention that while many corporations such as IBM, Lucent Technologies, Apple Computers, and American Airlines have successfully addressed this issue in policies, it is often better handled on a facility, rather than corporate, level in order to make solutions both practical and dignified.
Also, HIPAA regulations on confidentiality of employee medical information make generic policies difficult to administer.
I agree- please use extreme caution. If the person is a pre-surgical cross dresser- (having a full sex change) there are laws that proctect them as well. I had an issue like this and one of the things I was advised to upon hiring a person- if their birth certificate changes because of the gender operation- then you must allow them to use the appropriate restroom associated with their sex. Make sure you check your state law.
Angie
HR Manager