Via National Center for Transgender Equality: The New Landmark EEOC Ruling Explained: Workers Have Right to Restrooms Based on Identity
In a landmark ruling reported last week, the US Equal Employment Opportunity Commission (EEOC) ruled that employees have the right to equal access to workplace facilities that are consistent with their gender identity. Denying use of common restrooms consistent with a worker’s identity because they are transgender, the EEOC ruled, is a form of gender-based discrimination in violation of the Title VII of the 1964 Civil Rights Act. The ruling builds on 2012 Macy v. Holder ruling recognizing that Title VII protects transgender workers from job discrimination. NCTE congratulates Tamara Lusardi, the Army civilian worker who brought the case, and the Transgender Law Center, which represented Ms. Lusardi.
Ms. Lusardi worked as a software in engineer for the Army in Alabama. After six years on the job, she transitioned from male to female. Initially, she agreed to use a separate, single-user restroom rather than the common women’s restrooms. When she used the shared restrooms because the separate restroom was out of order or being cleaned, she was admonished that she could not do so until she provided proof of some (unspecified) form of surgery. After a year of this, she filed a civil rights complaint. The Army argued that it was legal to give Ms. Lusardi access only to a separate restroom while barring her from using the same restrooms as other women, and this restriction didn’t rise to the level of discrimination. The Commission disagreed: “The decision to restrict Complainant to a ‘single shot’ restroom isolated and segregated her from other persons of her gender. It perpetuated the sense that she was not worthy of equal treatment and respect.” In doing so, “the Agency refused to recognize Complainant’s very identity. Treatment of this kind by one’s employer is most certainly adverse” under the law, the Commission concluded.
The Army also argued that it was reasonable to restrict Lusardi’s restroom use until she proved she had had surgery. The Commission roundly rejected this argument: “Nothing in Title VII makes any medical procedure a prerequisite for equal opportunity (for transgender individuals, or anyone else). An agency may not condition access to facilities—or to other terms, conditions, or privileges of employment—on the completion of certain medical steps that the agency itself has unilaterally determined will somehow prove the bona fides of the individual’s gender identity.” The Commission said that there was no reason to question the fact that Lusardi—who lives and identifies as a woman—is female.