Restroom use "catch 22" for transgender individuals violates Title VII, court says

Roberts v. Clark County (NV) School District involved a female-to-male transgender police officer. Although the School District later changed its policy, when Bradley Roberts first told the District in 2011 that he was presenting as a male, he was told that he could not use the men's room until he submitted proof of gender reassignment surgery. But he wasn't allowed to use the women's restroom, either, because he was presenting as a male.

Deluxe Unisex Restroom.flickrCC.BenOstrowski

Mr. Roberts' only choice was to use gender-neutral restrooms. The decision doesn't indicate how much actual hardship that would have caused Mr. Roberts, but it does say that a bathroom ban for transgender individuals is per se an "adverse employment action."

The decision from a federal district court in Nevada follows decisions from the U.S. Courts of Appeal for the Fourth, Sixth, and Ninth circuits. It's also consistent with the position taken by the Equal Employment Opportunity Commission and the Occupational Safety and Health Administration, both of which say that transgender individuals should be allowed to use the restroom for the gender with which they identify and may not be restricted to gender-neutral restrooms (unless "gender-neutral" is all that the employer has).

According to the court's decision, the School District had a chance to mediate this charge when it was before the Nevada Equal Rights Commission, but declined to do it. In hindsight, that was probably an unfortunate choice. But the court referred the case for a mandatory settlement conference, so maybe they'll be able to work things out.

Image Credit: From flickr, Creative Commons license, by Ben Ostrowski.

Robin Shea has 30 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act). 
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