Fact Sheet: Facility/Bathroom Access and Gender Identity

Background

• The term “transgender” refers to persons whose gender identity and/or expression is different from the sex assigned to them at birth (e.g., the sex listed on an original birth certificate). The term transgender woman typically is used to refer to someone who was assigned the male sex at birth but who identifies as a female. Likewise, the term transgender man typically is used to refer to someone who was assigned the female sex at birth but who identifies as male. A person does not need to undergo any medical procedure to be considered a transgender man or a transgender woman. 

Title VII of the Civil Rights Act of 1964 and Transgender Individuals

• In addition to other federal laws, the EEOC enforces Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on race, color, national origin, religion, and sex (including pregnancy, gender identity, and sexual orientation). Title VII applies to private and state and local government employers with 15 or more employees, as well as to federal agencies in their capacity as employers. Like all non-discrimination provisions, these protections address conduct in the workplace, not personal beliefs. Thus, these protections do not require any employee to change beliefs. Rather, they seek to ensure appropriate workplace treatment so that all employees may perform their jobs free from discrimination. Contrary state or local law is not a defense under Title VII. 42 U.S.C. § 2000e-7.
• Employment discrimination complaints by federal sector applicants and employees are handled by the agency involved, but can be followed by an appeal of the agency’s decision to the EEOC, which can order the agency to provide relief if discrimination is found. By contrast, charges alleging discrimination by a state or local government or private employer are filed directly with the EEOC for investigation and, where possible, voluntary resolution; the EEOC cannot order relief in such matters, but in some cases may pursue litigation.
• In Bostock v. Clayton County, Georgia, No. 17-1618 (S. Ct. June 15, 2020), the Supreme court ruled that discrimination based on transgender status is sex discrimination in violation of Title VII. 
• In Lusardi v. Dep’t of the Army, EEOC Appeal No. 0120133395, 2015 WL 1607756 (Mar. 27, 2015), a federal sector appeal, the EEOC held that:
  1. a federal agency that denied an employee equal access to a common bathroom/facility corresponding to the employee’s gender identity discriminated on the basis of sex;
  2. the agency could not condition this right on the employee undergoing or providing proof of surgery or any other medical procedure; and
  3. the agency could not avoid the requirement to provide equal access to a common bathroom/facility by restricting a transgender employee to a single-user restroom instead (though the employer can make a single-user restroom available to all employees who might choose to use it).

For More Information …

• Further information from other federal government agencies includes:  A Guide to Restroom Access for Transgender Workers, issued by the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA), https://www.osha.gov/Publications/OSHA3795.pdf, and Guidance Regarding the Employment of Transgender Individuals in the Federal Workplace, https://op.bna.com/gr.nsf/id/llbe-9x5qcw/$File/OPM%20EEOC%20MSPB%20OSC%20Guide.pdf, issued by the U.S. Office of Personnel Management.

What to Do if You Think You Have Been Discriminated Against

• If you believe you have been discriminated against, you may take action to protect your rights under Title VII by filing a complaint:

  Private sector and state/local government employees may file a charge of discrimination by contacting the EEOC at 1-800-669-4000 or go to https://www.eeoc.gov/how-file-charge-employment-discrimination.

  Federal government employees may initiate the complaint process by contacting an EEO counselor at your agency; more information is available at https://www.eeoc.gov/federal-sector/overview-federal-sector-eeo-complaint-process.