In the last few months, hardly a day has gone by without some news regarding transgender bathroom access. Perhaps the catalyst for the increased attention on this issue was North Carolina’s passage of its controversial H.B. 2 law which, among other things, restricts transgender people’s access to public restrooms and blocks local governments from passing anti-discrimination laws to protect LGBT individuals.
Notably, the American Civil Liberties Union (“ACLU”) has since filed a lawsuit in federal court challenging that law, and seeking an injunction preventing the State from enforcing it. On May 4, 2016, the U.S. Department of Justice sent a letter to North Carolina Governor Pat McCrory saying the state’s controversial law restricting bathroom access for transgender persons is in violation of federal civil rights laws prohibiting employment discrimination.
The ACLU has also successfully challenged other entities that it believed were infringing on transgender rights. For example, the U.S. Court of Appeals for the Fourth Circuit recently sided with the ACLU and ruled that a transgender high school student who was born as a female but was barred from using the boys’ bathroom can sue his school board for discrimination. In that case, the Fourth Circuit accepted the federal government’s interpretation of discrimination as including discrimination against transgender individuals and thus deferred to the U.S. Education Department’s position that transgender students should have access to the bathrooms that match their gender identities, rather than being forced to use bathrooms that match their biological sex.
As a byproduct of the increasing visibility of this issue, both the U.S. Equal Employment Opportunity Commission (“EEOC”) and Occupational Safety and Health Administration (“OSHA”) have strongly supported transgender rights. Indeed, last year, OSHA promulgated its “Transgender Restroom Access Guide” with the core Principle that all employees, including transgender employees, should have access to restrooms that correspond to their gender identity. OSHA linked this to safety and health by reasoning that: