Apr 1

Game of Thrones: Transgender Employees in the Bathroom

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The world hasn't turned upside down. If a man identifies as a woman, California law says he's a she - and he/she can use the women's bathroom.

The world hasn’t turned upside down. If a man identifies as a woman, California law says he’s a she – and he/she can use the women’s bathroom.

In California, transgendered employees are winning the game of thrones. That’s because the Fair Employment & Housing Act (FEHA) prohibits an employer who regularly employs at least five employees from discriminating against an employee because of his or her gender identity. That, in turn, could mean an employee might have the right to use the bathroom that corresponds to his or her gender identity. If an employer denies him or her the right to use a gender-appropriate bathroom, the employer’s bank account might burst a leak. Similarly, California’s Unruh Act guarantees all people, regardless of their gender identity, full and equal access to the facilities of a private or public entity.

I. Transgender Access to Workplace Bathrooms

Under FEHA, an employer who regularly employs at least five employees may not discriminate against an employee in the terms, conditions, or privileges of his employment because of his or her gender identity.1 Thus, if a covered employer allows a non-transgendered male employee to use the men’s bathroom, but prohibits a transgendered male-to-female (MTF) employee from using the women’s bathroom, the employer is discriminating against the latter because of his gender identity. But the Court of Appeal has yet to address whether FEHA guarantees transgendered employees access to bathrooms corresponding to their gender identity.

That might be about to change. The Department of Fair Employment & Housing (DFEH) now advises (but doesn’t mandate) that “[a]ll employees have a right to safe and appropriate restroom and locker room facilities.” And a restroom isn’t “safe and appropriate” if it doesn’t correspond to an employee’s gender identity. On the other hand, the DFEH suggests that an “easily accessible unisex single stall bathroom” can be a safe and appropriate alternative to a gender-appropriate restroom for both an employee who desires increased privacy (regardless of the underlying reason) and an employee who doesn’t want to share a restroom with a transgender coworker.

If an employer knows or should know that an employee is harassing an employee for being transgender, the employer must take “immediate and appropriate corrective action.”2 But the DFEH believes that an employee should always have the right to choose whether to use a unisex single stall restroom. Thus, an employer shouldn’t force a transgender employee to use a unisex single stall restroom, even to protect him or her from ongoing harassment in a gender-appropriate facility. Presumably, the employer would have to fire the harasser or somehow ensure that the harasser and victim don’t use the same bathroom at the same time or otherwise come into contact with each other.

II. Transgender Access to Non-Workplace Bathrooms

A. Public Restrooms in Santa Monica

If a transgender employee can’t go in-house, he or she might be able to go to an outhouse. Every nonexempt employee gets a 10-minute rest break for every four hours of work (or major fraction thereof).3 That’s the employee’s chance to head straight for the nearest public restroom. The employee just better choose public restrooms wisely if he or she is in Santa Monica. That’s because Santa Monica’s “public restroom” ordinance prohibits an adult from entering a public restroom that is: (1) clearly designated for persons of the “opposite gender”; and (2) located in any “park, beach facility, pier, or public parking facility.”4

If your need to use a Santa Monica public restroom becomes a medical emergency, you don’t have to hold it. The Santa Monica “public restroom” ordinance allows an adult to use a park, beach, pier, or public parking restroom for the “opposite gender” if: (1) an “urgent necessity” requires him or her to use “toilet facilities”; (2) an adjacent public restroom that the city intended for his or her use is unavailable because it’s either closed, or all the “toilet facilities” are in use, and at least four people are waiting in line to use the “toilet facilities”; and (3) he or she enters the “other gender’s” restroom solely for the purpose of using the “toilet facilities.”5

Significantly, “toilet facilities” don’t include urinals. In a 1991 interview with the L.A. Times, Santa Monica City Attorney Robert Myers said he had received complaints about male drug dealers “invading” women’s public restrooms, though why they thought they’d draw less attention in the women’s restrooms isn’t clear.6 Similarly, Myers indicated in an October 29, 1991 report to the City Council that an exception for “urgent necessity” was necessary because women were complaining that women’s restrooms had fewer “facilities” than the men’s restrooms. The history of the ordinance thus suggests that a man’s urgent necessity to urinate wouldn’t warrant a trip to the women’s restroom if any of the urinals in the men’s restroom were still available.

The Unruh Act doesn’t prohibit gender-segregated bathrooms.7. But a transgender MTF who uses the women’s bathroom isn’t using a bathroom for the “other gender.” Like FEHA, a 2012 amendment to the Unruh Act provides that an MTF is a female. The Unruh Act guarantees all people, regardless of their gender identity, full and equal accommodations, facilities, privileges, and services in both private and public entities.8 Because the Santa Monica public restroom ordinance predates the 2012 amendment to the Unruh Act by 21 years, the Court of Appeal might soon rule that the Santa Monica ordinance can’t prohibit an MTF from using the women’s restroom.

For now, a transgender person uses a gender-appropriate public restroom at his/her own risk. Santa Monica’s “public restroom” ordinance requires the City Manager to make rules for the use of public restrooms.9 If anyone fails or refuses to comply with the City Manager’s rules for the use of public restrooms, he is guilty of a misdemeanor punishable by a fine of up to $1,000 per violation and six months in jail.10 Since the 1991 enactment of the “public restroom” ordinance, however, the City Manager has only banned camping, hair dying, toilet paper removal, and various other activities. Consequently, the punishment, if any, for a man using the woman’s bathroom remains uncertain.

B. Non-Public Restrooms in Santa Monica

If you don’t want to roll the dice on a Santa Monica public restroom, consider a private one. Not all businesses can restrict bathrooms to “customers only.” In Santa Monica, every service station must provide both a men’s and a women’s public restroom accessible to the “general public,” presumably including non-customers, during all hours the service station is open to the public.11 The restroom must be: (1) attached to an on-site structure (not a porta-potty); (2) have entrances or signage clearly visible from the gasoline service area or cashier station; and (3) have planters or decorative screening to conceal it from the view of adjacent properties.12

Similarly, every Santa Monica car wash (except for a self-service car wash) must provide a men’s and women’s restroom during all hours the establishment is open to the public.13 Like service station restrooms, car wash restrooms must be: (1) attached to an on-site structure (not a porta-potty); (2) have entrances or signage clearly visible from the waiting area or cashier station; and (3) have planters or decorative screening to conceal it from the view of adjacent properties.14 The car wash only has to make the restroom accessible to customers, however, so if you need to go, you’ll need to either get a car wash or buy something from the snack shop.

Food trucks also have to have restrooms. California law requires a food truck to operate within 200 feet of an “approved and readily available” toilet and handwashing facility to ensure that restroom facilities are available to facility employees whenever the truck stops to conduct business for more than one hour.15 But Santa Monica requires a food truck owner who operates anywhere within city limits to go even further. Every food truck must “maintain” a minimum of one accessible “public” restroom for men and one for women “on-site” during all hours the food truck venue is in operation within city limits.16 In other words, the food truck must make its restroom available to the public, possibly even non-customers.

  1. Gov. Code §12940(a). 

  2. Gov. Code §12940(j)(1). 

  3. IWC Wage Orders §12. 

  4. SMMC §4.08.280(a). 

  5. SMMC §4.08.280(b). 

  6. Nancy Hill-Holtzman. “Law Lets Women Use Men’s Room.” L.A. TIMES (Nov. 1, 1991). 

  7. Koire v. Metro Car Wash, 40 Ca.3d 24, 38 (1985). 

  8. Carter v. City of Los Angeles, 224 Cal. App. 4th 808, 814 (2014). 

  9. SMMC §4.08.285. 

  10. SMMC §4.08.285(c). 

  11. SMMC §9.31.320(N). 

  12. Id. 

  13. SMMC §9.31.080(I). 

  14. Id. 

  15. H&S Code §114315. 

  16. SMMC §9.31.190(F). 

Ben Rothman, Esq.

Ben Rothman is a Los Angeles-based attorney practicing in the areas of personal injury, employment, and workers' compensation on a "no recovery, no fee" basis. Call him at (424) 465-2948 for a free, no-obligation consultation.