Advice for Buildings on Gender Neutral Spaces

Nov 01, 2017

Written by: Phil Duran, OutFront Minnesota

There is rarely a lot of controversy in the world of building use and design, but in recent years, one item has risen to the surface in workplaces, schools, and other facilities across the country:  how to provide transgender individuals access to spaces that have typically been defined in terms of sex, such as bathrooms?  Though there has been considerable back-and-forth, the trend line appears to be moving in the direction of according access based on one’s gender presentation rather than on their anatomy, or of designing spaces in ways that avoid the conversation altogether.

For sake of simplicity, transgender people are individuals who live in a gender role that would not have been traditionally associated with the sex with which they were identified at birth.  This is not a whim: they identify as strongly with that gender role as non-transgender (or “cisgender”) individuals identify with theirs.  Transgender people are found within all racial, economic, or religious backgrounds, range in age from the very young to the very elderly, and live in all parts of Minnesota.  Many make efforts to change their bodies to match their deep-seated identities, while others do not.  Although many people assume that a person’s identity is defined by their genital anatomy, in typical interactions, we generally have little to no information about the genital anatomy of the people around us, so we rarely can know who has or has not made changes in this regard. 

In Minnesota, transgender people have been protected from most types of discrimination since 1993.  The question of restroom access by transgender people was posed relatively early, and the result was not what many transgender people and their advocates hoped for.  In Goins v. West Group (2001), the Minnesota Supreme Court considered a discrimination claim filed by a transgender woman (i.e., an individual who had transitioned from living as a man to living as a woman) who had been denied access to the women’s restroom by her employer.  The Court assumed that despite living completely as a woman she was “anatomically male,” and held that as such, she had no right to use the women’s restroom, but that her employer was free to allow her to do so anyway.  Shortly thereafter, a federal appellate decision (Cruzan v. Special School District No 1, 2002), originating in Minnesota, concluded that where an employer allowed a similarly-situated employee to use the women’s restroom, this did not give rise to discrimination complaints by other employees who objected. 

Subsequent administrative decisions by the Minnesota Department of Human Rights (MDHR) have made applying Goins more challenging.  First, MDHR concluded – consistently with Goins – that where a transgender person had had gender-confirming surgery and how had female genital anatomy, she was fully entitled to use the women’s facilities.  Second, MDHR concluded in a separate case that it was not permissible to demand that transgender facility-users produce medical or identity documents not expected of cisgender people.  What this means is that while anatomy may govern a person’s right to use a particular space, those who offer the space either must inquire into the anatomy of every user – which seems unlikely – or not inquire at all.  Of course, not asking means, essentially, avoiding the whole discussion, making Goins somewhat moot in practice.

Federal law had been moving fairly consistently in the opposite direction of Goins until quite recently, when the picture became murkier, but this movement continues nonetheless.  During the Obama Administration, the Equal Employment Opportunity Commission (EEOC) determined that federal sex-discrimination laws require that employees be allowed to use the restrooms which align with their gender presentation, rather than with their anatomy.  Position statements by the Departments of Education and Justice took the same approach with respect to schools, and the Occupational Safety and Health Administration (OSHA) followed suit.  Though some administrative statements have been rescinded by the current administration, the courts have tended to continue in this Obama-era direction, particularly regarding schools. 

So where does this leave building owners and managers?  First, if an employer rents space in an office building and their employees use restrooms that are shared with other tenants, building managers are well-advised to stay out of the discussion about where their transgender employees may go.  Trying to restrict their access may expose the tenant employers to litigation, and that could result in their departure as tenants, or their dragging building management itself into the litigation.  As Cruzan shows, employees of other tenants will likely have little if any basis for taking action against building management.  And trying to “verify” a person’s anatomy as a condition of using the bathroom is not likely to go particularly well, either.

Second, managers would also be well-advised to examine the facilities in their buildings to determine if gender-neutral restroom options are feasible.  In essence, this generally involves a disability-accessible restroom with a single toilet, a sink, and a lockable door, which anyone may use regardless of their gender or anatomy.  Such facilities, sometimes labeled “family restrooms” or something similar, are increasingly common in public spaces and in 2018, changes to the state building code may require that single-user restrooms be gender neutral.  It is important for management considering installing such facilities to recall that it is fine to offer such spaces for those who wish to use them, but not fine to require that transgender people use them instead of a traditionally-gendered space.  If there is someone in the building who is deeply uncomfortable with the idea of a transgender person in the restroom, a single-user space is perfect for them. 

Finally, because more employees are commuting by bike and want to shower when they get to work, it is highly advisable to design such spaces as separated, individual (and thus gender-neutral) stalls, to avoid employees having to change or shower in front of one another.

Category: Industry Insights

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