Author: Brian Cafritz, Esq.
By law, most states require restaurants or retailers to provide suitable restrooms for its guests. But which guest is permitted to use which restroom is becoming an issue that restaurants and retailers must ask themselves to avoid legal action related to discrimination or privacy violations.
If your guest is transgender, what obligation does the restaurant or retailer have to provide a facility for that guest? What duty does the business have to protect its other guests from what may be an invasion of privacy? What should the business’ employees do when speaking to the transgender guest to resolve any confusion?
While the issues of transgender equality, anti-discrimination, and privacy are currently focused on state-run government properties, public restrooms found in Retail and Restaurant establishments must take notice. Absent legislative enactment, what is a restaurant or retailer to do?
The easy answer for restaurants and retailers is that single occupancy restrooms are preferred and should be made gender neutral. Indeed, this is legislated in some jurisdictions already (See the District of Columbia). For buildings that only have multiple occupancy restrooms, they can often be easily retrofitted for more privacy. Urinary dividers and/or stall doors and walls can be extended from ceiling to floor.
Regardless of the physical layout of the restroom, employees of restaurants and retailers should be trained on handling this sensitive issue. The best practice is to allow guests to use restrooms of their sexual identification, rather than biologic gender. Employees should not openly prevent guests from using a restroom consistent with the guest’s sexual identity. Moreover, under no circumstances, should the employee take action to investigate a guest’s biological gender or say anything may be considered harassment, embarrassment, or discriminatory against the guest.
These recommendations are based on recent and ongoing legislation. Gender is typically a class that is protected against discrimination. But in today’s society, the definition of gender is not as simple as it once was, and the lines have become blurred. In Virginia, the state legislature recently killed a proposed bill that would require transgender students and/or persons in public schools or state run buildings to use restrooms and locker rooms of their biological sex. The bill was defeated in part based on the fear of discrimination, while proponents argued the bill was designed to protect the privacy of other users.
In the end, the state legislature deferred the issue to the 4th Cir. Court of Appeals, who is currently slated to decide the issue in a case brought by a Gavin Grimm, a biologically born female student in Gloucester County Virginia public school who was prohibited by the school from using the male restroom. Grimm sued the School Board for violating the 14th Amendment Equal Protection Clause and Title IX of the US Education Amendments. The case was accepted by the 4th Circuit for review in January 2016, and a ruling is expected this year.
Other jurisdictions have dealt with this issue, either through state statute or local ordinance. For example, in the state of Washington, the State Human Rights Commission requires public buildings to permit transgender people to use restrooms and locker rooms of their identified gender, but a bill has been introduced by a State Senator to overturn that ordinance. On the other hand, this past November, a city ballot measure in Houston, Texas that sought to give transgender individuals access to their identified gender was defeated by a popular vote. Bathroom Bills similar to Houston’s proposal have been introduced in Arizona, Maryland, Kentucky and Florida.
KPMLAW will continue to monitor the Grimm case and report as this issue develops. In the meantime, if you have a question on this topic, please feel free to contact us.