Monday, May 9, 2016

Transgender Facility Issues: The Department of Justice Gets Involved

In the never ending and ever evolving saga of transgender restroom facilities issues, there has been yet another new development last week.  The U.S. Department of Justice (“DOJ”) has notified North Carolina’s governor and its university system leaders that the state’s new transgender law violates the U.S. Civil Rights Act.

The North Carolina law, which has recently been making headlines, requires that individuals use bathrooms that correspond with their biological sex.  The DOJ has requested that the North Carolina state leaders respond by May 9, 2016 and advise whether or not they will remedy the alleged violations of Title VII of the Civil Rights Act.

This most recent DOJ action takes a very aggressive stance towards a state’s, and certainly by implication a local government’s ability to legislate the issue of transgender restroom and facility usage.  Specifically, the DOJ letters to the North Carolina officials stated, “Access to sex segregated restrooms and other workplace facilities consistent with gender identity is a term, condition or privilege of employment.  Denying such access to transgender individuals, whose gender identity is different from their gender assigned at birth, while affording it to similarly situated non-transgender employees, violates Title VII.”

While there is a dearth of legal guidance on this subject (sans the EEOC’s recent guidance) in the form of case law, the language provided by the DOJ could not be more clear.  If a state employer or university denies access to a restroom or other facility based upon biological sex, the DOJ says that’s a civil rights violation.  The DOJ letter also put university system leaders on notice of the fact that they could lose federal funding if they persist in enforcing the new state law.  Likewise, the state of North Carolina could lose federal funding as well.

Battle lines are now being clearly drawn by the federal government, and it is abundantly clear that the government is willing to use its most powerful weapon, money, to impose its will.  Government employers and school systems, both state and local in my opinion, will now have to choose between their principals and their checkbooks.

Like it or not, it is time to consider policies which provide for restroom and facility access that complies with the law as it currently stands.  Until such time as there is legal authority to the contrary, transgender persons must be given access to the facilities with which they identify.  Doing anything else is extremely risky and potentially very costly.

Ancel Glink provides policy guidance and advice as well as best practices for dealing with this very complex issue.  Government employers and school districts are strongly encouraged to implement policies that address the issue of transgender access to facilities.  With this issue, waiting until you have a problem is not advisable.  The time to act is now.  This is truly a situation where an ounce of prevention is worth of pound of cure.