The bathroom issue – a federal perspective

29 01 2011

Let’s talk bathroom access and the federal workplace.  For those not in the know, the one singular mountainous issue that all transsexuals must ascend is that of where to pee.  You would think that this would be a simple issue: you’ve transitioned, you’re dressed in your target gender each and every day, 24/7…. you therefore believe that you should be entitled access to the bathroom that matches your gender presentation.  Think again.

Now, let’s review… If, for example, you are employed in the County of Suffolk, on Long Island, there is:

Local Law No. 14 – 2001, Suffolk County, New York – A local law to strengthen and implement application of county human rights law to public accommodations, employment and housing. (effective 10/05/2001).  States in part:

Section 2. (G.)  The term “gender” shall mean both the biological and social characteristics of being female or male.

(H.)  The term group identity shall mean race, color, religion, age, national origin, alienage or citizenship status, gender, sexual orientation, marital status or disability.

Section 89-13. (A.) It shall be an unlawful discriminatory practice:

1.). For an employer to refuse to hire or to bar or to discharge from employment or to discriminate against any individual in promotion, compensation, or in terms, conditions or privileges of employment, because of the group identity of such individual.

Seems straightforward enough, except for one important detail:

“Unfortunately, as a county agency, the Commission does not have jurisdiction over federal agencies such as the FAA, and will therefore be unable to assist you in this matter.
~ James L. Kokindo, Jr., Investigator,
Suffolk County Human Rights Commission

So, a federal agency is legally able to discriminate against a resident of Suffolk County, and therefore, one’s rights are meaningless to the County…. one law that isn’t worth the paper it’s printed on.

Now, let us ascend to the federal level.  In 2009, not long into President Obama’s term, there was a key important change to the disclaimer on the “USAJobs” website, the primary site for finding federal employment.  It states:

“A federal agency cannot discriminate against an employee or applicant with respect to the terms, conditions or privileges of employment on the basis of race, color, religion, sex, national origin, age, disability, marital status, political affiliation, sexual orientation, gender identity, or any other factor that is nor related to job performance…”

This looks all so very wonderful and reassuring, except if you seriously wish to enforce it.  Accept it for what it is… a hollow statement designed to placate the masses.  PLain and simple.  And you have similar others:

“The Federal Aviation Administration is committed to compliance with all anti-discrimination laws, regulations and policies.  We have zero tolerance for discrimination in the workplace on the basis of race, sex…”

The U.S. Department of Transportation will maintain a model Federal work environment that is free of discrimination.  The Department will assure equal employment opportunity for employees and applicants for employment regardless of race, color, national origin, religion, sex, et al….  The Department will enforce zero tolerance of discrimination in the workplace…..”

Heck, even our President found some gay pride:

“I call upon the LGBT community, the Congress, and the American people to work together to promote equal rights for all, regardless of sexual orientation or gender identity.

NOW, THEREFORE, I, BARACK OBAMA, President of the United States of America, by virtue of the authority vested in me by the Constitution and laws of the United States, do hereby proclaim June 2009 as Lesbian, Gay, Bisexual, and Transgender Pride Month. I call upon the people of the United States to turn back discrimination and prejudice everywhere it exists.”

Apparently, that does not apply to federal agencies, the very entity that the President oversees.  With one stroke of his pen, he could set aside eons of prejudice, but that would be both progressive and brave… and likely the death knell to their political career.  But that’s what all of this is about, isn’t it?  Politics and people’s political careers, whether elected or appointed….  basic human rights is a very kewl principle indeed, except with it comes time to stand up and be counted.  The response from those who are supposed to stand up and argue for people’s basic rights?  “This is a very difficult situation.”  And we haven’t even touched on the concept of having one’s so very personal information briefed to over 550 co-workers…. hey, (insert name) I heard is getting a divorce; where’s my employee briefing?  Keri, you are taking this waaay too personally….

Ok,  but the last quotes mentioned discrimination on the basis of sex; but, says the ignorant one, “aren’t we like talking about trannies?  I mean a tranny woman is really a guy. Well, closed-minded one, let’s take a look at:

Diane J. Schroer vs. James H. Billington, Library of Congress – On March 31, 2006, a Federal Court ruled that a case may proceed based on potential violation of Title VII of the Civil Rights Act.  Finding that sex may not be

a cut-and-dried matter of chromosomes,” the court ruled that federal protections against sex discrimination may also protect transgender people who are discriminated against based on their gender identity.

In rejecting the government’s argument that discrimination against transgender people is not sex discrimination, the court noted

“the factual complexities that underlie human sexual identity. These complexities stem from real variations in how the different components of biological sexuality — chromosomal, gonadal, hormonal, and neurological — interact with each other, and in turn, with social, psychological, and legal conceptions of gender.”

On September 19, 2008, a federal district judge ruled that the Library of Congress illegally discriminated against Schroer, in a groundbreaking decision that found that discriminating against someone for changing genders is sex discrimination under federal law.  On April 28, 2009, the judge ordered the government to pay nearly $500,000 in compensation for the discrimination, which was the maximum he could award in the case. Federal District Judge James Robertson’s ruling is the first to hold that the federal sex discrimination statute, Title VII of the 1964 Civil Rights Act, applies to transgendered people.

So… it would seen we have federal protections both on the basis of gender identity and also, much more importantly I would argue, on the basis of sex.  A hugely monumental ruling in identifying, from a legal perspective, that a person’s physical composition does not sex make.  But…. this is one jurisdiction’s ruling, and is precedent only so far.  This is so far as LGBT community legal advocates being scared to death to force the issue for fear of this case, or any case directly concerning this volatile issue of access, making its way to the Supreme Court and being ruled against.  The Schroer case went unappealed by the Justice Department.

One other interesting, and pertinent, ruling was handed down in the State of Minnesota in 2002.  In the case of Cruzan vs. Special School District, the issue of access to public bathrooms specifically addressed by the federal courts. In this landmark case, the ruling was made in June 2002 by a federal appeals court that an employer is within its rights to instruct a transgendered employee to use the restroom matching their new presentation. The ruling states that if another employee complains, the employer may offer the complainant an accommodation (such as the use of a different restroom for them.) Southwest High School teacher Carla Cruzan complained that allowing transgendered library employee Debra Davis to use the women’s bathroom violated her religious freedom and created a hostile workplace based on sex. As a result, the school provided Cruzan -the non-trans complainant – with ready access to several other bathrooms, including single-occupancy facilities and other women’s restrooms. Unsatisfied, Cruzan petitioned to block Davis from using the women’s restrooms at school. She lost and appealed to the U.S. Court of Appeals for the 8th Circuit, in St. Louis.

The school district’s policy was not directed at Cruzan and Cruzan had convenient access to a number of restrooms other than the one Davis used. Cruzan does not assert Davis engaged in any inappropriate conduct other than merely being present in the women’s faculty restroom. Given the totality of the circumstances, we conclude a reasonable person would not have found the work environment hostile or abusive.”

So, just for shits and giggles, let’s look at, oh, my situation.  There are approximately 8 sets of male/female defined, multi-use bathrooms at my facility – other buildings included – three sets of which are immediately off the control room floor.  Two sets – four individual bathrooms – are now unisex.  Which means that I have access to four bathrooms, well off the control room floor – one issue needs be addressed is what do I do when on position and I must go – while everyone else has the choice of eight still, including six that are multi-use, meaning they will never potentially have to wait. Keri, why are you still bitching about this?  You have bathrooms to use, when many do not… and besides it will be a non-event soon..

I challenge anyone out there who thinks I’m bitching to go though what I have had to, just at work alone, excluding transwomen of course, because they are the ONLY ones to really get it.  I am not a “special case,” I am not “disabled,”  I do not require “special accommodations.”  I just would like what, from a humane standpoint, is right and is fair.  It is sad that, throughout the federal service, pre-operative trans-identified – by that I refer distinctly to transsexuals – are not allowed access in many cases to any bathroom, let alone the one of appropriate gender.  So much for all of those wonderfully inclusive statements.

The sad truth is that, had I gotten my job post-transition, without anyone knowing my medical history – which everyone seems to conveniently forget/don’t give two shits about is PERSONAL – I would be using the correct bathroom without incident.  Do they really think they are keeping transsexuals out of the bathrooms? How do they know???  The truth is that they do not, which, when they do, results in those like me, trying to be accommodating and above-board end up with issues like this.  Thank god the GLB community is out and about or they’d be questioning my sexual preference.  But that’s what this is all about it, isn’t it?    The defining moment reduced to a single piece of anatomy which, frankly, doesn’t really function in that regard anymore…. and I will not even discuss sexual preference.

Rant? Perhaps…. but, I am entitled, still, to my opinions.  And though it seems I hold a grudge, honestly, I do not.  I merely state the truth, the obvious, where others may not wish to ruffle feathers and remain quiet and compliant.  Because I am trying to be conciliatory, and accommodating (more than everyone else I do believe…), all the whiles wearing a “happy face,” it does not mean I have to like it.  Tolerate, yes… which interestingly, is all I ask from others.



3 responses

30 01 2011
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30 01 2011

Dear Keri,

You described the situation very, very succinctly and I can’t find “fault” with anything you’ve written.

My supervisor/office manager was contacted by management at your facility, and asked about how he handled my transition. I’m sure he did not share all the details of that conversation, but there was enough said for me to get an abridged, top-down perspective regarding some of what you’re going through. Plainly put: It Stinks!

Although I’ve told you this before, it’s worth repeating: Prior to transitioning, I met with my supervisor/office manager, his supervisor, and (at that time) manager of AEA’s EAP. During that meeting, we formalized a verbal–but nonetheless binding–“contract” about what bathrooms I would use. Although I agreed to utilize only single-user women’s bathrooms, there was one exception. In the event of a truly pressing need, I retained the right to use whichever women’s bathroom happened to be closest and/or most convenient; even if it contained multiple toilet stalls.

So, my dear Keri, if you’re looking for a precedent, you now have it. To my way of thinking, it doesn’t matter one iota whether there’s a “truly pressing need,” or simply an everyday desire to pee. The point is that agency management verbally signed-off on a pre-op entering/using any woman’s bathroom in one of their facilities.

TO OTHERS WHO MAY BE READING THIS: Keri and I both work for the same agency–different branches; different physical facilities; different positions. My on-the-job transition was in 2003.

With best wishes, I remain,

sincerely yours,


30 01 2011
Keri Marie

Key word being “verbal…” I’m not going to push the issue, because they don’t want to hear it, their minds are closed and it would be fruitless. The only ones who had the temerity, i.e. balls, to even consider it seriously was TLDEF… for that I give them great credit, and view Lambda Legal in lesser regard. The present system seems to be working for the moment, might as well build some goodwill with others here… hopefully they will recognize over time that I was the one who made the most accommodations and sacrifice of my privacy….. But probably not.

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