Carmen Carrera is an actress and model. Lynn Conway is a recognized computer scientist. Caroline Cossey was a Bond girl in the movie “For Your Eyes Only.” Amanda Simpson, appointed by President Obama, currently serves as the Executive Director of the U.S. Army Office of Energy Initiatives.

What do these people have in common? They are transgender.

The younger generation may be more familiar with names such as Lana Wachowski (who was the co-director of the Matrix movies), Laverne Cox (star of the popular series, “Orange Is The New Black”), and Caitlyn Jenner (who won the Olympic gold medal). They too are transgender.

As more transgender people become comfortable revealing their true selves, there have been discussions about whether an individual who is born a man but identifies as a woman can use the women’s restroom, and vice versa. This is a sensitive topic that has raised safety concerns for some people. In fact, several schools from elementary school to the college level have installed gender-neutral bathrooms (or “unisex bathrooms”) to address any safety issues that may arise.

The installation of gender-neutral bathrooms is also a growing trend in the workforce. Recently, OSHA published “A Guide to Restroom Access for Transgender Workers.” This is an important guide that reminds employers that they have an obligation to provide employees toilet access. In addition, the guide reminds employers that they may not impose unreasonable restrictions on employee use of toilet facilities. The Guide contains “best practices” and makes it clear that

Under these best practices, employees are not asked to provide any medical or legal documentation of their gender identity in order to have access to gender-appropriate facilities. In addition, no employee should be required to use a segregated facility apart from other employees because of their gender identity or transgender status.

It should be stressed that this is not law, but rather OSHA guidelines. But undoubtedly, the issue presents employers with a liability pitfall. For example, in April 2015, the Equal Employment Opportunity Commission (“EEOC”) determined that denying transgender employees access to restrooms used by other employees of the same gender identity constitutes direct evidence of sex discrimination under Title VII. This case involved a male-to-female transgender woman who was told that her use of a common women’s restroom was making co-workers “uncomfortable,” and she was directed to use a unisex bathroom instead.

At a minimum, employers should take the time to review the OSHA Guide as well as their company’s internal policies regarding access to bathroom facilities. If you have any questions about discrimination on the basis of sex or sexual orientation, please contact us.


No Legal Advice
The information and materials available on the Site (the “Materials”) are for informational purposes only and are not intended to and do not constitute legal advice or a solicitation for the formation of an attorney-client relationship. The information provided on this Site may not apply to your particular facts or circumstances; therefore, you should seek legal counsel prior to relying on any information that may be found on this Site. Furthermore, information provided on this Site may not reflect the most recent developments in the law and may not be applicable in your particular jurisdiction. Therefore, you should not act on any of the information contained on this Site until you obtain legal counsel from a qualified individual in your jurisdiction.

No attorney-client relationship is created through your use of the Site or your receipt of the Materials. We accept clients only in accordance with certain formal procedures, and render legal advice only after completion of those procedures. We do not seek to represent anyone desiring representation based upon viewing the Site in a state, territory or foreign country where the Site fails to comply with applicable laws and ethical rules. In addition, our attorneys do not seek to practice law in states, territories or foreign countries where they are not properly authorized to do so.

No Advertisement
This Site and the information contained herein are not intended to be an advertisement or solicitation of business, but they may be considered an advertisement in some jurisdictions.

You may link to any page of this Site, but no framing is permitted. Any link to this Site must be immediately followed by notice to JMS via email at In the event we deem your linking practices in relation to this Site to be inappropriate, we may provide you with notice concerning removal or modification of the inappropriate link, and you agree to comply with any and all requirements of JMS relating thereto.