Does the law protect a transgender person’s right to use the restroom consistent with their gender identity? *
There’s no clear answer here because very few courts have considered this question and the results have been mixed. In two recent positive decisions, an administrative agency in Colorado in 2013 and the Maine Supreme Court in 2014 both ruled that under those states’ gender identity discrimination laws, transgender girls had the right to use girls’ restrooms at their public schools. On the other hand, a 2001 Minnesota Supreme Court decision found that even a law prohibiting gender identity discrimination didn’t necessarily protect a transgender woman’s right to use the women’s restroom at work. And a federal appeals court in 2007 upheld the Utah Transit Authority’s decision to fire a transgender bus driver, 8 based on a claim that her employer could be sued for her use of women’s public restrooms along her bus route. In a non-workplace context, a New York appeals court ruled in 2005 that it wasn’t sex discrimination for a building owner to prevent transgender people from using gender identity-appropriate restrooms in a building where several businesses shared restrooms. Authorities in some jurisdictions (e.g., Colorado, Iowa, Oregon, Washington State, San Francisco, New York City, and the District of Columbia), however, have specifically said that denying transgender people the right to use a gender identity-appropriate restroom violates their nondiscrimination laws. Some jurisdictions (e.g., Iowa, San Francisco, and D.C.) go farther and make clear that transgender people can’t be required to prove their gender to gain access to a public restroom, unless everyone has to show ID to use that restroom. Other jurisdictions (e.g., Chicago) continue to allow businesses to decide whether a transgender patron may access men’s or women’s restrooms based on the gender on their ID, which may or may not reflect accurately the person’s gender identity. Many businesses, universities, and other public places are installing single stall, gender-neutral restrooms, which alleviate many of the difficulties that transgender people experience when seeking safe restroom access. Some cities (such as Austin, Philadelphia, Washington, D.C., and West Hollywood) have local laws that require single-stall public restrooms to be labeled as unisex. While this is often a useful step towards addressing the concerns of transgender people and others, the ACLU believes that transgender people should have the right to use restrooms that match their gender identity rather than being restricted to only using gender-neutral ones
* This is an excerpt from the ACLU FAQ brochure about the bathroom issue.