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The Big Problem If ENDA Doesn’t Stipulate What Changes Must Be Made to Employee Bathrooms

gender_neutral

As members of the House debate whether the Employment Non-Discrimination Act is something this country needs to keep queers safe in the workplace, should they also, by the end of all of this, issue strict directions on what employers need to do about the signs they hang on bathroom doors?

Of the many objectives activists have for ENDA, providing “bathroom rights” to transgender employees is one of them. But that’s no easy issue, as Kalamazoo, Michigan, can attest. Just because we want to give transgender Americans the freedom to use the bathroom they’re most comfortable with doesn’t mean corporations know how, exactly, they should go about doing that. After all, one employee’s bathroom rights is another employee’s potential sexual harassment lawsuit. And employers would love to not have to deal with that situation.

So surely Congress will provide some guidance then? Not quite.

camilleolson

Which is why Chicago labor attorney Camille Olson, of the firm Seyfarth Shaw LLP, testified before the Senate Committee on Health, Education, Labor and Pensions — of which only three of the Committee’s 23 members showed up for — and reiterated the concerns she hears from her clients (read: businesses): It is “absolutely critical to have clarity” on which bathroom facilities need modification, and just what type of modifications are deemed necessary, she said. While ENDA would not apply to “denial of access to shared shower or dressing facilities in which being seen unclothed is unavoidable,” it would require employers to provide “reasonable access to adequate facilities” for transgender employees.

And without specific guidance from ENDA on what that means, businesses will find themselves unclear on what needs changing, says Olson.

But that concern seems to be too specific for Committee Chairman Sen. Tom Harkin (D-Iowa), who responded “no legislation can cover every conceivable” scenario that might arise out of a claim of discrimination. Instead, ENDA must provide “broad guidance to the courts.”

Which is all well and good, but Olson’s concern isn’t one of degradation or nuance. Sure, she represents American corporations, which have an interest in abiding by the law with the least expensive means and smallest amount of effort. But without specific guidelines about what corporations need to do so transgender employees can go to work and not feel discriminated against at the bathroom, these companies are left to decide what’s fair.

And that means, from one office park to the next, transgender staffers could see a wide variety of supposedly discrimination-free facilities. And that’s not good for anyone.

U.S. Senate holds first ever hearing on inclusive ENDA [Bay Windows]

By:           editor editor
On:           Nov 8, 2009
Tagged: , , , , ,

  • 12 Comments
    • Dr. Jillian T. Weiss
      Dr. Jillian T. Weiss

      For those with experience in advising employers on bathroom issues for transgender employees, it is clear that a wide variety of solutions is both appropriate and necessary. One size does not fit all, and not all transgender employees want the same solution. I have worked with many employers around the country, including Harvard University, Boeing and the New York City Department of Homeless Services, to craft appropriate policies. My book, “Transgender Workplace Diversity: Policy Tools, Training Issues and Communication Strategies for HR and Legal Professionals,” is well-regarded by experts, and suggests five criteria be used in bathroom determinations. I think you, and Ms. Olson, and anyone else who is truly interested in understanding this complex area should read it. Be that as it may, such lengthy guidance is not appropriate for legislation. It would be better included in regulations issues by the administrative agency responsible for enforcing the law after a period of study. I think that Ms. Olson should have done her homework before testifying before Congress to determine what solutions employers have used before asserting, wrongly, that employers will not know what to do. Hundreds of employers all across the country have been successful in figuring out what to do without Congress telling them. I also note that jurisdictions that have attempted to include bathroom solutions directly in the legislation have invariably found that those who are dead set against such legislation use such language as a political football, making such legislation very difficult to enact. So think carefully before suggesting that ENDA contain such language.

      Nov 8, 2009 at 7:01 pm · @ReplyReply to this comment ·
    • Sean
      Sean

      Best part about the restroom sign… it’s not really gender neutral. According to the sign, it’s only open to two genders.

      Nov 8, 2009 at 8:41 pm · @ReplyReply to this comment ·
    • alex
      alex

      “One size does not fit all, and not all transgender employees want the same solution.”

      Exactly, Dr. Weiss. I believe that public policy should be used to guide organizations to do the right thing; but, it shouldn’t be overly specific. Our elected representatives aren’t experts on every topic involved in legislation. (Nor should they be expected to be experts.) Congress should create the framework and allow those in the know to craft possible solutions to the problems.

      Nov 8, 2009 at 9:06 pm · @ReplyReply to this comment ·
    • what
      what

      Jillian seems more intent in selling her book and keeping herself in business as a consultant than answering the damn question. This should be specified in law otherwise we will end up with one more ambiguous law that is impossible to follow and only profits lawyers in lawsuits. The elected reps are not smart enough to understand the details here, true, but they should go to outside consultants like they do on many issues to frame something into law.

      A simple example would be restrooms for the disabled. I don’t know how many here have dealt with construction and codes for new buildings, but there are very strict rules about when, where and how to construct restrooms for the disabled created by state governments that were created due to federal mandate. This works. I see no difference here. If an employer is sued for discrimination due to lack of facilities, there are codes that are easy to look at which protect both employer and employee. This whole “one size doesn’t fit all” philosophy also fits the situation with the disabled, but it has been defined to a reasonable degree (such as businesses of a certain size must have these things… etc.) If you can’t define all the variables for a law you end up with a law with no teeth and therefore no enforcement.

      Nov 9, 2009 at 1:02 am · @ReplyReply to this comment ·
    • Tina
      Tina

      First off, I am all for ENDA.

      But bathroom issues are not about trans people. They’re about the cisgender public’s problems with us. We have no problems using the bathrooms, only when do straight people complain is there a problem.

      Nov 9, 2009 at 4:21 am · @ReplyReply to this comment ·
    • Dr. Jillian T. Weiss
      Dr. Jillian T. Weiss

      Reply to WHAT’s comment: You say that I don’t “answer the damn question,” but no question was posed by the main article. Rather, there was a blanket statement in the article that we should be agitating for new language in ENDA just before it comes up for a vote, a very bad idea, long rejected, presented as if it were a creative new idea.

      The suggestion at the beginning of your second paragraph that transgender people should be treated like the disabled for purposes of restrooms is not in accord with best practices. In fact, one of the authors of ENDA, Chai Feldblum, was also one of the main drafters of the Americans With Disabilities Act. The Americans With Disabilities Act has, as one of its main ideas, the proposition that disabled people need special accommodations in rest rooms. ENDA, to the contrary, has as one of its specific ideas the proposition that transgender people do not need special accommodations in rest rooms. There is specific language in section 8 to point this out.

      One of the main concerns expressed by opponents of ENDA is that it will require employers to construct new accommodations, which will be an onerous responsibility. Proponents of ENDA are constantly pointing out that Section 8 specifically states that no new accommodations are needed.

      Whose side are you on?

      Nov 9, 2009 at 6:43 am · @ReplyReply to this comment ·
    • jason
      jason

      There is no such thing as a “trans gender”. Your gender is either male or female. It is locked in your chromosomes. Even if you have a surgical procedure to swap your genitals, you remain the gender you were born.

      Nov 9, 2009 at 6:55 am · @ReplyReply to this comment ·
    • Meghan Stabler
      Meghan Stabler

      Jillian is absolutely correct in her responses to the article and to “what”.

      I too have advised many corporations across America about the “perceived” bathroom issue when facing an employee about to transition. My advice has remained constant that “once an employee presents ‘fulltime’ in their affirmed gender that without restriction they should use the bathroom of that gender”.

      I have kept in touch with many of the employers and the HR contact with whom I advised on policy, NONE, repeat, NONE have reported ANY issue with this approach. They know that if an “issue” were to have occurred, it would have been reported and dealt with immediately.

      Placing ‘recommendations’ about bathroom accommodations in to a Bill would be subject to grave and unneeded interpretation, and to a transitioning employee; harmful risk;

      – a specific bathroom for their use would only spotlight the employee with the potential to put them at risk from intimidation
      – a specific location on a busy campus or multi-level building is inconvenient ( when you need to go – you need to go )
      – who checks the employees gender “status”? If the employee completes surgery, are they “allowed back” to use ANY restroom for their affirmed gender?

      Corporate America had dealt with this issue for years, there are proven practices and acceptance for this. I specifically used the word “issue” in some of my response, in reality, bathroom accommodations for transgender employees turn out to be a “non-issue”

      My final comment, for those that fear transgender people and want to place that fear into a perceived bathroom issue; stay out of the discussion unless you are an expert experienced in dealing with this from a policy perspective.

      Nov 9, 2009 at 9:18 am · @ReplyReply to this comment ·
    • terrwill
      terrwill

      Here is yet another issue where the trans community hitch their issues onto the Gay commmunity. If you make the switch you are either male or female there should be no burden on companies to provide “inbetween” facilities. Or even have to deal with this issue.

      If you can’t decide which freaking bathroom to use then get yourself a big box ‘o Depends and sit in it!! Bullshit issues like this, which have no bearing on Gays or Lesbians only garners more resentment towards the Gay community and results in defeats like the debacle in Maine.

      Chose either a pole or a hole, and live with it……………

      Nov 9, 2009 at 10:00 am · @ReplyReply to this comment ·
    • Patricia
      Patricia

      Jason – That is incorrect. You are thinking of Biological Sex. A simple Google of the issue would help you out in this matter.

      Nov 9, 2009 at 10:17 am · @ReplyReply to this comment ·
    • Andrew
      Andrew

      Terrwill: It’s not that simple — and, no, it’s not that they “can’t decide” which bathroom to use. Many transgendered people would like to “make the switch,” as you put it, but are denied the use of the bathrooms they wish to use by their employers. This creates problems in work situations.

      So, yes, employers do have to “deal with this issue” whether they want to or not. A simple one-sentence policy (i.e. “Transgendered employees may use the bathroom of the gender they identify with”) can fix most situations. It doesn’t have to be complicated or costly — a little understanding is all that’s needed.

      Nov 9, 2009 at 1:36 pm · @ReplyReply to this comment ·
    • Zoe Brain
      Zoe Brain

      The ignorance… it burns….

      Jason, please consider this:
      A 46,XY mother who developed as a normal woman underwent spontaneous puberty, reached menarche, menstruated regularly, experienced two unassisted pregnancies, and gave birth to a 46,XY daughter with complete gonadal dysgenesis. – J Clin Endocrinol Metab. 2008 Jan;93(1):182-9.

      While the majority of trans women have 46xy chromosomes, not all do. Some trans women, born looking male, have the same 46xx chromosomes as other women. Others are 47xxy.

      Most men have xy chromosomes. Most women have xx ones. Men are also taller than women. Dividing the sexes chromosomally is only marginally more accurate than saying “tall people are male, short people are female”. In general, it’s true, but there are exceptions.

      There are also thousands of people in the US who are dichogamous – they get a “natural sex change” to the casual observer.

      See for example:
      Gender change in 46,XY persons with 5alpha-reductase-2 deficiency and 17beta-hydroxysteroid dehydrogenase-3 deficiency. by Cohen-Ketternis and 17?-Hydroxysteroid dehydrogenase-3 deficiency: A rare endocrine cause of male-to-female sex reversal by Bertelloni et al.

      Please, before coming to an opinion that is cruel to others, check your facts.

      Nov 10, 2009 at 5:09 am · @ReplyReply to this comment ·

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