Florida Law on Bathrooms and Transgender Employees

With North Carolina’s recent passing of House Bill 2 (HB2) and national news outlets focusing on issues of sexual orientation and gender identity discrimination, it is important for employers and employees in Florida to think carefully about the laws in our state for employers and transgender employees using the bathrooms. If a Florida employer requires his or her employees to use the bathroom that matches their “biological sex,” as HB2 does, can that employer be held liable for workplace discrimination?

To better understand the answer to this question, we should take a closer look at the language of North Carolina’s HB2 and the Equal Employment Opportunity Commission’s (EEOC) discussion of sexual orientation discrimination in the workplace.

The Dangers and Harms of HB2

What is HB2? In brief, it is a law that was recently passed in North Carolina that requires everyone to use the birthplace of their “biological sex,” or the sex/gender listed on their birth certificates, according to an article in the Charlotte Observer. What does the law mean in practice? As the article explains, “transgender people who have not taken surgical and legal steps to change the gender noted on their birth certificates have no legal right under state law to use public restrooms of the gender with which they identify,” and “cities and counties no longer can establish a different standard.”

The article also emphasizes that the new law is not limited to North Carolina. To be sure, other states across the country are attempting to enact similar anti-LGBT laws. In Florida, HB 583 attempted to do something similar to North Carolina’s HB2. While the law has been defeated, it would have “prohibit[ed] knowingly and willfully entering a single-sex public facility designated for or restricted to persons of the other biological sex.”

Employers’ Discriminatory Bathroom Rules May Constitute Sexual Orientation or Gender Identity Discrimination

According to a recent article in The Atlantic, the U.S. Department of Justice has issued a letter making clear that North Carolina’s HB2 is discriminatory, and that it violates both Title VII and Title IX of the Civil Rights Act. When it comes to employment discrimination, an alleged violation of Title VII is particularly significant given that Title VII expressly prohibits employers from discrimination against their employees “because of sex” or “on the basis of sex,” according to a statement from the EEOC.

While Title VII of the Civil Rights Act does not use language concerning discrimination based on sexual orientation or gender identity, in Mia Macy v. Eric Holder, Lawyer General, Department of Justice, Agency, Appeal No. 0120120821 the EEOC “held that discrimination against an individual because that person is transgender (also known as gender identity discrimination) is discrimination because of sex and therefore covered under Title VII of the Civil Rights Act of 1964.” In other words, the EEOC recognizes bathroom-related discrimination against a transgender employee—requiring an employee to use the bathroom that matches his or her “biological sex”—as a clear form of prohibited workplace discrimination.

Seek Assistance from an Employment Discrimination Lawyer in Florida

The EEOC makes clear that requiring a transgender employee to use the bathroom associated with his or her biological sex—rather than the sex or gender with which she or he currently identifies—can be construed as a form of sex discrimination. If you believe your employer has behaved in a discriminatory manner, you may be able to file a workplace discrimination lawsuit. An experienced Florida employment discrimination lawyer can help. Contact Scott Law Team for more information about filing a claim.