Politicians, advocates, and news reporters at the national, state and local levels have elevated the discussion about bathroom use by transgendered persons. North Carolina recently enacted a law that requires people in the state to use the bathroom that matches the biological sex stated on their birth certificate. The U.S. Department of Justice (“DOJ”) and thee U.S. Equal Employment Opportunity Commission have taken the position that the North Carolina law violates Title VII of the Civil Rights Act of 1964 and Title IX of the Education Amendments of 1972 because such law discriminates against persons on the basis of sex. Currently, North Carolina and the DOJ are involved in a lawsuit regarding such laws.
The discussion involves issues of personal dignity, personal privacy, private health information, psychological well-being, safety, harassment, interpretation of discrimination laws and personal beliefs. Ohio and federal law provides protection to individuals who are discriminated against on the basis of sex. Ohio has existing laws that can address inappropriate behavior in bathrooms. Examples include laws against voyeurism, sexual harassment, assault, sexual battery, unlawful conduct with a minor, sexual imposition and importuning. Some Ohio municipalities have passed local non-discrimination ordinances that specifically provide protections for gender expression and identity.
The U.S. Equal Employment Opportunity Commission has issued a fact sheet titled, Bathroom Access for Transgendered Employees Under Title VII of the Civil Rights Act of 1964. It can be found at https://www.eeoc.gov/eeoc/publications/fs-bathroom-access-transgender.cfm
On a related, but different note, Ohio also has a law that encourages retail establishments to permit a customer to use an employee-only restroom when a public restroom is not available if the customer requesting the use suffers from an eligible medical condition or utilizes an ostomy device (R.C. 4173).
Discussions about “bathroom use” are complex both emotionally and legally. If you have questions regarding bathroom use it may be helpful to consult with an attorney to better understand your rights.
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11 states sue feds over new guidelines for restroom and locker room use by transgender individuals
On May 25, 2016, a federal lawsuit was filed in Dallas by officials in 11 states against the Obama administration, contending that new federal guidelines for access to such facilities, in schools and workplaces, by transgender individuals are unconstitutional. The plaintiffs are the states of Alabama, Georgia, Louisiana, Maine, Oklahoma, Tennessee, Utah, West Virginia and Wisconsin, as well as individual school districts in Arizona and Texas. For more information on the story:
Harvard Law Professor Jeannie Suk sees Title IX ‘collision course’ in federal directives on bathrooms and sexual violence
The Justice Department is citing Title IX to support its directive that public schools must allow transgender students to use bathrooms and locker rooms that match their gender identity.
Some schools could respond by opening bathrooms to both genders. But that raises a new question, Harvard law professor Jeannie Suk says in an article for the New Yorker. Could the same law that bans sex discrimination in education also be used to support a claim by female students who say sharing bathrooms with males makes them feel unsafe?
Suk notes that the Education Department told schools in 2011 that sexual violence is a form of harassment that constitutes sex discrimination under Title IX of the Education Amendments of 1972. For more information on this story: