It’s come to this: On Monday, June 1, the Occupational Safety and Health Administration published a guide telling employers which restrooms their workers may use. Basically, it’s up to them.
First, the Guide to Restroom Access for Transgender Workers states that employees can suffer “adverse health effects if toilets are not available when employees need them.” Health effects!? Cue OSHA.
Then the guide outlines the “core principle” that “all employees,” including transgender employees, “should be permitted to use the facilities that correspond with 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. The employee should determine the most appropriate and safest option for him- or herself.”
If co-workers don’t like it, tough: OSHA points to an April 2015 Equal Employment Opportunity Commission ruling, which said “a transgender employee cannot be denied access to the common restrooms used by other employees of the same gender identity, regardless of whether that employee has had any medical procedure or whether other employees’ may have negative reactions to allowing the employee to do so.”
And finally, OSHA’s “best practices” guide on restroom use contains the hint of a threat: “Employers should be aware of specific laws, rules, or regulations regarding restroom access in their states and/or municipalities, as well as the potential application of federal antidiscrimination laws.”
OSHA places respect for transgender employees above all: “Regardless of the physical layout of a worksite, all employers need to find solutions that are safe and convenient and respect transgender employees,” it says.
“Under these best practices, employees are not asked to provide any medical or legal documentation of their gender identity in order to have access to gender-appropriate facilities. In addition, no employee should be required to use a segregated (gender-neutral) facility apart from other employees because of their gender identity or transgender status.”
In other words, companies may provide Single-occupancy restrooms as an additional option that employees may choose, but are not required to use.
The OSHA guide explains that gender identity is an intrinsic part of each person’s identity and everyday life. “Accordingly, authorities on gender issues counsel that it is essential for employees to be able to work in a manner consistent with how they live the rest of their daily lives, based on their gender identity.”
It continues: “Restricting employees to using only restrooms that are not consistent with their gender identity, or segregating them from other workers by requiring them to use gender-neutral or other specific restrooms, singles those employees out and may make them fear for their physical safety. Bathroom restrictions can result in employees avoiding using restrooms entirely while at work, which can lead to potentially serious physical injury or illness.”
As The Hill noted when it first reported this story Monday, OSHA developed the guidelines as the request of a transgender advocacy group, The National Center for Transgender Equality.