One of the fastest changing legal landscapes in our country is that involving LGBT rights. Most notably, a recent United States Supreme Court ruling acknowledged the right of gay persons to marry a partner of the same gender. This recognition of legal rights for persons who do not fit what has traditionally been considered the norm for our society has spawned others to step into the limelight. Former Olympic champion Bruce Jenner’s transformation from male to female, and the publicity that has garnered, shows the changing mood of society on these issues.
Like many important social issues, the rights of LGBT persons is front and center in the employer/employee relationship. Employment rights for gay and transgendered employees have been mostly non-existent, allowing employers to handle matters as they see fit. With the public awareness of the Jenner story, recognition of transgendered persons’ rights is on the rise, and will only make it easier for those person’s to join mainstream society.
One of the workplace issues that presents itself for transgendered employees is which restroom to use. Is it the one that corresponds with their birth gender, or is it the one that corresponds with their chosen gender? As transgendered persons become more accepted and visible in the workplace, this issue will be one that requires an official position on the part of employers.
Fortunately, help has been provided by the Occupational Safety and Health Administration, which is the federal agency charged with establishing standards to promote workplace safety. On June 1, 2015, the agency published a Guide to Restroom Access for Transgender Workers. The guidelines indicate that transgender employees should be permitted to select the bathroom that is consistent with their chosen gender rather than their birth gender.
The guidelines are not formal rules and are therefore not binding. Consequently, employers are not required to follow them; however, in the absence of any statute or court ruling that shows the way, so to speak, it gives employers something upon which to base their position on the matter. Some have argued that OSHA has no legal foundation to issue the guidelines because it is not a matter of employee safety. Others who support the agency’s position point out that its regulations for years have required the provision of separate sex bathrooms for employees. It only follows, then, that the agency should be able to issue additional guidance that clarifies the rights of employees to use those facilities.
Given the volatility of the overall issue of LGBT persons within society, there will no doubt be proposed legislation as well as court cases regarding their employment rights. While the OSHA guidelines cannot legally provide a cause of action, they will at least signal the start of a legal standard that supports the rights of transgender employers.
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