Trans people and restroom access
In April 2015, the Equal Employment Opportunity Commission ruled that federal sex-discrimination law (referred to as Title VII of the Civil Rights Act of 1964) required that a federal employee, transitioning from male to female, be allowed to use the women’s restroom. Two months later, the US Occupational Health and Safety Administration (OSHA) issued guidelines reflecting this decision, providing guidance to employers subject to OSHA regulations – which is most private employers across the country -- on best practices regarding restroom access for transgender workers, namely to permit transgender employees to use the restroom matching their gender identity. These federal developments are extremely promising, but currently their direct impact is on employment settings, and may not apply to situations involving locations like malls, restaurants, etc. (i.e., “public accommodations”) where a person is a customer, not an employee.
For non-employment settings, or in employment settings that are not subject to Title VII or OHSA requirements, Minnesota law will apply, and state law in this context is not necessarily as friendly to trans people as these federal developments.
In November, 2001, the Minnesota Supreme Court ruled in a case called Goins v. West Group (635 N.W.2d 717 (Minn. 2001)) that an employer could legally assign restrooms based on an employee's physical anatomy. The court held that this was a distinction based on sex, not on sexual orientation/gender identity. In particular, the court held that the employer could require an employee it believed to be anatomically male to use the men's restroom, regardless of the fact that the employee lived and worked full-time as a woman. However, the court also ruled that the law did not require employers to do this; employers may permit workers to use the restroom that matches their gender presentation, irrespective of anatomy. OutFront Minnesota encourages employers to allow trans workers to use the facilities that match their gender identity.
Since that time the federal Eighth Circuit Court of Appeals has concluded that simply permitting transgender employees to use gender-appropriate restrooms does not create a "sexually hostile work environment" for other employees. (See Cruzan v. Special Sch. Dist. #1 [Minneapolis, MN], 294 F.3d 981 (8th Cir. 2002)) Also, the Minnesota Department of Human Rights has determined that a post-operative transgender female was fully entitled to use a women's restroom. More information about restroom and other transgender-related human-rights issues has been published in the Minnesota Department of Human Rights' The Rights Stuff newsletter. Further, the Minnesota Department of Human Rights has determined that where a restroom-provider requires people it knows or believes to be transgender to provide documentation or other evidence in order to use a restroom or similar space, but does not require this of people it does not know or believe to be transgender, this is also a violation of the Minnesota Human Rights Act. Simply put, transgender people may not be singled out and required to "verify" their gender when non-transgender people are not similarly required to do so.
Despite Goins, it remains against the law in Minnesota in most cases to fire, refuse to hire, evict, deny service to, or in other ways discriminate against a person based on the fact they're transgender. More information on human rights protections in Minnesota is available here.
In September 2014, the Minneapolis City Council approved a resolution OutFront Minnesota helped craft and support, which called on those within the city who provide single-user restrooms to do so on a gender-neutral basis. We continue to advocate for gender-neutral restrooms wherever feasible.
For more information, contact the OutFront Minnesota Legal Program at firstname.lastname@example.org or at 612.822.0127 x.7663.
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