Should Your Bathrooms Be Gender-Neutral?
One of the hot topics in the news and in court rooms lately is which bathroom a transgender person is permitted to use and whether employers or places of public accommodation have any say in the matter. Should your bathrooms be gender-neutral?
A transgender person is a person whose gender identity or gender expression is different from the gender assigned to them at birth. In Maine, it is illegal to discriminate against a person based on their gender identity. The guidance available for employers regarding this bathroom question is consistent across the board: employers should not direct which bathroom a transgender employee can use, the employee gets to choose. So what happens if your other employees are uncomfortable sharing a bathroom with a transgender person? You can make other facilities, such as a single-occupancy bathroom, available to the uncomfortable employee. Just to be clear, you cannot direct your transgender employee to use a separate bathroom, but you can provide the option for other employees who are uncomfortable sharing.
If you wish to make your bathroom situation less-awkward, there are several options you can utilize to preemptively diffuse potentially uncomfortable situations. First, if you are constructing new facilities, consider putting in gender-neutral single-occupancy bathrooms. Second, you can turn your current multiple-occupant gender-segregated bathrooms into multiple-occupant gender-neutral bathrooms. This would mean that men and women would share a bathroom. This is common in other countries, but this option, while recommended by federal agencies as a viable option, may actually make your employees even more uncomfortable than they would have been sharing their bathroom with a transgender person. The third option is to keep your bathrooms segregated by gender but add some privacy enhancements. These would include having stall walls and doors that reach floor to ceiling and installing flaps to cover any gaps in the stall walls.
Additionally, if you are a place of public accommodation such as a restaurant, retail store, movie theater, or other place where the general public visits, the same rules apply if you have a transgender customer: the customer is allowed to choose their bathroom and if any of your employees are uncomfortable then those uncomfortable employees can use a separate bathroom if one is available.