Obligations to Transgender Patrons
Businesses and associations operating in Washington need to be aware of anti-discrimination rules in how they treat transgender patrons. Washington law prohibits discrimination against transgender persons in places of public accommodation. The law defines places of public accommodation expansively and it includes hotels, motels, restaurants, bars, retail establishments, medical facilities, funeral homes, educational institutions, and nearly every other kind of business or entity open to or providing services to the public. While truly private clubs and religious institutions may be exempt, they too are subject to anti-discrimination law when the general public is invited or permitted to use their facilities.
Under regulations adopted by the Washington Human Rights Commission (HRC), prohibited conduct includes “offensive and unwelcome behavior serious enough to alter the individual’s experience at the place of public accommodation, or severe enough that the individual has no choice but to leave the place of public accommodation.” The HRC has also adopted regulations specific to “gender segregated facilities” in places of public accommodation. These regulations specifically address how a business or other entity may and may not treat transgender persons in their use of restrooms, locker rooms, changing rooms, and other such facilities traditionally separated by gender.
Under the regulations, a business may not require a person to use a gender-segregated facility that is inconsistent with their gender expression or identity. For example, if an anatomically male individual identifies as a female then a business cannot force them to use the men’s room. Nor can a business force such persons to use a gender neutral or private restroom. If you have a family or unisex facility along with men’s and women’s facilities, you may not require that a transgender person use that facility rather than whichever gender-segregated facility matches their gender identity.
But what if another customer is made uncomfortable by the presence of a transgender person in a male or female restroom or locker room? Here again, the law offers specific guidance on the situation. A business may not require the transgender individual to leave the men’s or women’s room, but rather should direct the offended patron to a private or unisex bathroom to resolve the issue. These rules apply even in facilities where undressing in front of others occurs, such as locker rooms and changing rooms.
Businesses may institute uniform codes of conduct which apply across all genders, regardless of a person’s gender identity or expression. Any action taken against transgender persons may only be based on such gender-neutral standards. Thus, a person may not be removed from a restroom or similar facility which matches their gender identity simply because they are not anatomically male or female. Any person, however — whether male, female, transgender, gay or straight — may be made to leave a facility because they are acting inappropriately according to uniform standards of conduct.
The HRC provides specific guidance on how businesses may comply with these rules. It is recommended that a business provide only single-stall private bathrooms where feasible. Every person would thus be free to, and comfortable, using any of the provided facilities regardless of gender or gender identity. This could also alleviate other issues, such as obviating the need for family-friendly private restrooms or avoiding situations where the men’s or women’s restroom is full while the other sits empty.
Often times it may not be feasible to provide only private, single stall facilities. In those circumstances, the HRC recommends providing at least one private, separate restroom or similar facility which anyone is free to use. Transgender persons could use the private facility if they prefer, though they cannot be made to use it. Any other patrons who are uncomfortable with the presence of a transgender person in the restroom or changing room may instead be directed to the private facility as a means of addressing the problem.
It is also recommended that businesses provide training to their employees on the requirements of anti-discrimination laws, including as applies to transgender patrons.
Every business or organization should consult with an attorney or other specialist to ensure they are in compliance with the law and to address any specific issues. Federal law will also need to be consulted. Kirkpatrick & Startzel represents businesses and individuals in discrimination actions, whether in the context of employment or public accommodation. Call today for a free initial consultation.