Question: There has been a lot of news coverage lately on restroom policies related to transgender employees. Can you provide some guidance on how to structure our restroom-use policies to be both lawful and respectful of all employees? More generally, can you help me understand the appropriate, respectful terminology in this area? I certainly don’t want to offend anyone on purpose, and I also don’t want to do so by mistake.
Answer: You are certainly correct that there has been a lot of heated commentary and political debate surrounding this subject. Fortunately, the legal answer to your question about restroom policies is pretty well-settled. In short, if employers have bathrooms that are segregated on the basis of sex, employers should allow employees to use the restroom associated with their gender identity, and should not require employees to use the restroom associated with their sex assignment at birth.
Before we get there, though, let’s clarify some terminology. Using correct terminology is important not only to be respectful to all employees, but also because the EEOC has held that a company can be liable if a supervisor deliberately uses improper or discriminatory terminology when addressing or referring to a transgender employee. See Lusardi v. McHough, 2015 WL 1607756 (EEOC Apr. 1, 2015). “Transgender” is an umbrella term used to describe persons whose gender identity or gender expression differs from what is typically associated with the sex they were assigned at birth. GLAAD, GLAAD Media Reference Guide – Transgender Issues (2016); American Psychological Association, Answers to Your Questions about Transgender People, Gender Identity, and Gender Expression, p. 1 (2014).
The term “transgender” is an adjective and not a noun (e.g., “he is a transgender male” generally is acceptable, while “he is a transgender” or “he is transgendered” generally are not). GLAAD, GLAAD Media Reference Guide – Transgender Issues (2016). Transgender individuals may also prefer to be referred to as “transsexual” or “trans,” though “transgender” generally is the preferred term and should be used unless specified otherwise by the individual. Id. “Transvestite” and “tranny” generally are considered derogatory terms and should be avoided. Id. The terms “biological” or “genetic” also should be avoided (e.g., “she is biologically male” or “he is a genetic female”) in favor of “sex assigned at birth” (e.g., “her sex assignment at birth was male” or “he was designated female at birth”). It is also important to remember that a person’s gender identity or gender expression is not necessarily related to the person’s sexual orientation. A transgender person may be straight, lesbian, gay, bisexual, or asexual. Id.
“Gender identity” and “gender expression” are more specific terms. “Gender identity” refers to a person’s internal sense of being male or female (or, in some instances, both or neither, to varying degrees). “Gender expression”...
