is my transgender coworker using the right bathroom?

A reader writes:

I have a question of how/if/when transgendered coworkers get to be treated as such in the workplace. Specifically, there is a man in our office (widely known as such) who wears women's clothing, hairstyles, shoes, makeup, etc. every day, and refers to himself as "she". Some women in the office have been claiming that his use of the women's restroom constitutes sexual harrassment. Employees of both sexes have claimed that if he is male, he's violating company conduct and dress codes by wearing women's clothing to work.

The problem is, we have no idea if he is fully transgendered, ie, with a legal right to be treated as female in the workplace, or if he's just a guy that likes to crossdress and use the wrong restroom. We have no way of knowing what his "legal" gender or even his name are; he goes by a female name but no one knows if that's what's on his official employee documentation. I'm sure HR would balk at being asking to reveal an employee's "real" gender, but how else can the rumors and dissent be calmed? 

It seems to me that if someone wants to be treated as transgender, they should get to be. I don't think there's a litmus test that involves coworkers making them "prove" anything.

But I also know very little about this issue, so I asked Dr. Jillian Weiss, who has researched and written extensively on transgender issues in the workplace, for her guidance on this situation. She says she's never heard of a situation where an employee just suddenly starts crossdressing and using the opposite sex bathroom; normally, there is a process, agreed to by the employer. She raised the possibility that this may not be a real situation, but we'll proceed as if it is, because either way, it's an interesting issue to explore.

Dr. Weiss explained that the answer to the question posed here depends greatly on the laws of the city and state where the situation occurs, but in jurisdictions that do have gender identity anti-discrimination statutes, none impose any medical or surgical requirements to qualify for workplace protection. In other words, when there are laws protecting trangender employees, what matters is how that person has decided to self-identify (male or female), not what their legal or biological gender status is.

Now, to the direct questions raised, she says (emphasis mine):

It is important to note that the situation presented is very unusual, because almost all employees who transition on the job notify their employer, which in turn notifies co-workers of the new gender, name and appropriate pronouns to be used in the future. Most employers have a meeting with co-workers to explain the company's non-discrimination policies and how they affect the workplace in the situation of gender transition on the job. It's extremely unusual to hear of a situation where a co-worker starts wearing clothing of the opposite sex and starts using the other restroom without any notice to employer or co-workers.  

More significant, then, is the legal principle that the law generally accords employers the right to set the terms and conditions of employment. In the two court cases that have addressed the question of bathroom use by transgender workers, both in Minnesota, the rulings have indicated that the employer has the right to set whatever policies it would like with regard to its transgender workers. The federal district court in Minnesota upheld the right of an employer to allow a transgender employee to use the bathroom of the new gender, and specifically noted that co-workers have no cause of action for sexual harassment. In a separate case, the Minnesota Supreme Court upheld the employer's right to deny the bathroom of the new gender to the transgender employee. Thus, it is usually up to the employer to decide what is best.

The key fact here is that employers usually do not know the medical history of their transgender employees, nor would such knowledge be helpful in determining the best policy for the organization. For those who have objections to transgender persons using public restroom, the problem usually lies in the fact that the person transitioned from one gender to another on the job, thus creating a situation of visible androgyny. The fact that the transgender worker had certain medical procedures usually does not alleviate the concerns of those who object and, as I pointed out, does not change their "legal" gender. 

What is much more important than questions of whether someone is "really" transgender is the attitude of the employer and co-workers. In thousands of companies where a person has transitioned on the job, a positive workplace environment has been preserved where people of good will work together. Discussion of company policies and a meeting with co-workers to discuss the new situation can be helpful in addressing questions and concerns that co-workers may have. The situation posed by our reader illustrates the types of problems that can occur in the absence of this forethought.

She also notes: "The question of whether someone is 'really' transgender, or what their 'legal' gender is, cannot be answered because our society has a patchwork quilt of social norms and legal regulations that make this area of the law fairly unintelligible ... It is worth noting that the federal Employment Non-Discrimination Act, now pending in Congress and given a fair chance of passage, would aid in this because it would include definitions that would apply country-wide. That would be very helpful to hapless human resources managers across the country who often face these questions."

Her answer makes a lot of sense to me, and as is so often the case with workplace issues, it comes down to being open and straightforward. If we do have all the facts here, then the employer has mishandled this badly, by not addressing this or giving people any guidance and instead leaving it to be dealt with by "rumors and dissent." And the employees themselves aren't handling it well -- but it's hard to be surprised by that, because society really hasn't taught people how to respond to issues of transgender. Far from it.

I recommend that the letter-writer point out to her HR department that this needs to be handled more proactively and refer them to materials like the following to get them started:

- Human Rights Campaign's workplace gender transition guidelines (this page includes links to the gender transition policies of companies such as Ernst & Young, Chevron, and Boeing)
- Dr. Weiss's model letter from management
- More resources from Dr. Weiss for managers of transgender employees