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Dealing with transgender issues in public facilities

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In 2006, the Washington Legislature passed a law prohibiting discrimination based on sexual orientation and gender identity in employment and places of public accommodations. As defined by law, “sexual orientation, means heterosexuality, homosexuality, bisexuality, and gender expression or identity. Gender identity or expression refers to one’s having, in part, to having or perceiving as having a gender identity different from that traditionally associated with the sex assigned to a person at birth.

The common term is “transgender.”

The Washington State Human Rights Commission (HRC) has issued a “Guide To Sexual Orientation and Gender Identity and The Washington State Law Against Discrimination” (see www.hum.wa.gov). All business owners with places of public accommodation and employers with more than eight employees should read and become familiar with this guide.

As our society becomes more acquainted with transgender issues, such as the appropriate language to use when talking with or referring to transgender individuals, it is becoming increasingly important to understand and use some of the more common and accepted definitions that can apply to the transgender dialogue, such as: cisgender (gender identity or expression that aligns with the sex assigned at birth); trans man or trans woman (someone who was born male or female and transitions to the other gender); transgender (an umbrella term describing a broad range who express their gender differently including transsexual, cross-dressers or other non conforming gender traits).

On a practical level, when communicating with transgender individuals, it is also important to use the pronoun that corresponds with the gender with which they identify. If unsure, the best policy is to respectfully ask the person’s preference.

One of the more recent issues to arise is appropriate bathroom access. To provide guidance on this issue, in December 2015, the HRC enacted WAC 162-32-060, which deals with gender segregated facilities.

Bottom line—stores, schools, government buildings, libraries, museums, medical offices, gyms, places of entertainment, service stations, hotels/motels and other places of public accommodation must allow a transgender person use the bathroom, locker room, shower room, or dressing room according to the person’s gender identity.

While there are some limited exceptions to the new regulations, if a business is inviting the public to patronize its business, then it must accommodate a transgender person’s bathroom preference. Any organization claiming an exception to the new bathroom access rules will have the burden of proving that it is distinctly private place of accommodation not subject the Washington’s Law Against Discrimination.

In this past legislative session, bills were introduced, in both the House and Senate, to repeal this regulation, but they either failed to get a hearing or did not pass. Thus, unless the regulation is changed in the future all places of public accommodation must comply and allow appropriate transgender bathroom access.

In many cases, this will probably require educating all employees about the new regulation to ensure that an uninformed employee does not inadvertently attempt to prevent a transgender individual from appropriate bathroom or other facility access.

If a person complains that a business either does not provide or does not allow appropriate bathroom access, then the HRC has authority to investigate complaints, subpoena witnesses and require the production of documents. If HRC is unable to satisfactorily resolve an issue, then the HRC can file a complaint with an administrative law judge and seek enforcement of any order issued in superior court.

Further, person harmed by a place of accommodation or business because of discrimination against them due to their gender identity or expression can file suit and, if successful, is entitled to recover damages for mental anguish, emotional distress and attorney fees.

The important message for all places of businesses and places of public accommodation is they must allow transgender individuals to use the bathrooms, locker rooms, showers and other segregated facilities consistent with the person’s gender identity.

Gil Sparks is Of Counsel with the law firm of Ogden Murphy Wallace and has been practicing employment and labor law primarily representing employers since 1988. This article is not a substitute for legal advice and if you have questions about the new regulations you should contact Gil or your regular legal counsel.