Bathroom Bill Background
At the heart of the controversy is the recent push in the U.S. toward expanded rights for LGBT citizens in almost every area of public life. The recent Supreme Court ruling to allow same sex marriages set off a wildfire of new and expanded regulations prohibiting discrimination against LGBT citizens as part of the equal protection of the laws noted in the U.S. Constitution.
However, the progress toward a fundamental federal law prohibiting discrimination against LGBT workers came to an abrupt halt toward the end of the year. The Employment Non Discrimination Act (ENDA) passed in the Senate, but failed to overrule conservative sentiments in the House and is currently stalled there.
Almost as if in response, many municipalities and rural localities began shoring up protections for LGBT workers through local laws and ordinances. These either added new language to sex discrimination protections for workers to include gender identity and/ or sexual orientation or further clarified the old laws to explicitly make gender identity and sexual orientation discrimination a form of sex discrimination.
Perhaps the most significant showdown prior to the North Carolina debacle involving bathroom bills occurred in Houston, Texas. The Houston City Council began adjusting a city ordinance to include sexual orientation and gender identity protection in its nondiscrimination laws. Before the changes could be approved they were halted by a lawsuit against the city. The suit resulted in a referendum placing the issue back up for vote among the populace.
In the meantime, opponents to the changes gathered momentum by alleging that the changes to the ordinance meant that transgender individuals would be allowed to use bathrooms opposite of the traditional notions of gender identity (hence, the term “bathroom bill”). Using this as ammunition, the referendum resulted in a full-on quash to the changes.
Meanwhile in other municipalities and localities, gender identity protection laws are successfully passing although meeting opposition in some states. States like North Carolina succeeded in opposing such bills by enacting laws that prevent recognition of the laws at the state level.
Facts About Sex Discrimination and Bathroom Bills
This controversial background has set the stage for many public debates on the expansion of rights for transgender individuals with some aligning with conservatives based on traditional notions of sex and the federal government (and the EEOC) leaning more and more toward an expansion of rights and protections aimed specifically at the LGBT community.
The EEOC recently announced it views sexual orientation discrimination and gender identity discrimination as sex discrimination under Title VII.
The EEOC, the primary enforcer of civil rights laws concerning discrimination, is now enforcing Title VII’s prohibitions against sex discrimination to be broad enough in scope to include gender identity discrimination and sexual orientation discrimination. The agency cites recent case law from the Supreme Court and federal courts which prohibit gender stereotypes as support for its decision.
This means that even though there is not currently a federal law protecting LGBT workers from discrimination, the EEOC has begun to view LGBT discrimination as a form of sex discrimination. As courts look for precedent to rule on new cases of gender identity and sexual orientation discrimination under federal law, they will be sure to take into consideration the EEOC stance on the issue.
Workers affected by bathroom bills could challenge them under Title VII.
Prior to the EEOC decision to enforce gender identity and sexual orientation discrimination as sex discrimination, employees had difficulty bring these types of cases to court under Title VII. Now, however, employees adversely affected by work policy that singles out LGBT workers can be heard using Title VII as the main legal justification for the lawsuit – with EEOC support.
We can expect to see more and more cases of LGBT workers challenging bathroom bills using Title VII.
Most religious employers do not have to provide transgender restrooms.
It’s important to note that the provisions of Title VII can be overcome in situations where employers are protected by religious conscience laws. These laws like those backed by the Religious Freedom Restoration Act (RFRA) and similar regulations allow religious institutions to choose their own policies irrespective of federal dictates authorizing policy that would interfere with the freedom of religion.
In recent years, the Religions Freedom Restoration state laws have come under fire for their potential to allow some employers to discriminate against LGBT workers. However, many states have continued to bolster the strength of such legislation despite public protest and criticism.
Transgender workers have equal access to restrooms at wotk under Title VII and many state laws and local ordinances.
Despite the backdraft in some states against allowing gender aligned use of bathrooms for transgender workers and individuals, other states have pushed forward with laws that ensure transgender rights in this area.
Today 20 states have laws on the book protecting both LGBT employees from both sexual orientation and gender identity discrimination. Protections for gender identity discrimination in these states mean that employers must provide reasonable accommodations, possibly including gender aligned restroom use for transgender workers when requested.
Religious Freedom Restoration Bills and laws can block obligations to allow non-gender aligned use of restrooms.
Even with the new sex discrimination advancements, it is still possible for religious freedom bills to allow employers to follow their conscience concerning bathroom use. For now, the EEOC is siding with the LGBT community on a number of issues, however, and the state of bathroom bills and sex discrimination issues of America remain to be battled out in the courts.