NC Governor Pat McCrory recently made news by signing into law the Public Facilities Privacy and Security Act which basically stops localities like Charlotte from passing ordinances that allow transgender individuals to use public restrooms that align with their gender identity, not their birth gender. The ACLU has quickly gotten involved and a lawsuit has been put in motion to declare the NC law unconstitutional.
All this will certainly play out in the political arena and in the courts. The purpose of this article is not to take sides in the dispute, rather to provide guidance to organizations like yours if faced with this dilemma in the meantime. Let's say "Bruce" joined your company a couple of years ago and has been a solid contributor. But Bruce has recently decided to reveal to his co-workers that he really identifies himself as a female, begins wearing female clothing to work, and asks the company to begin referring to him as "Caitlyn." He has also asked to begin using the women's restroom. How do you respond?
This story is becoming more common. The Social Security Administration reports that in the 2010 census some 90,000 Americans had changed their name to reflect the opposite sex and over 20,000 have actually changed their sex in the official record. This, however, is a small percentage of the reported 700,000 Americans who consider themselves transgender according to a study by the Williams Institute. If the Williams Institute is correct, it is only a matter of time before your organization faces this question, "what do we do about Caitlyn?"
The NC statute may give a sense of cover to those traditional employers in NC who may feel that an individual should really use the restroom that matches their actual plumbing rather than what they wish their plumbing to be. But I would caution against rushing to judgement over Caitlyn's request, expecting the NC law to protect you.
It is wise to consider that both OSHA and the EEOC have gotten involved in this debate. OSHA published a guidance on the topic last year in which it recommends that employers allow employees to use the restroom with which they identify. And while it is fine to offer unisex alternatives, it is not fine to require the transgendered to use them. The EEOC also made it clear in its Lusardi v. McHugh decision in April 2015 that it considers transgender rights to be covered by Title VII of the Civil Rights Act, so employers who choose to discriminate against LGBT employees are doing so at their own risk. Personally, I wouldn't want to stand in front of the EEOC depending on the NC law to justify my employment actions, and I definitely recommend you confer with an attorney before deciding to take a hard line stance on this issue.
Bruce becoming Caitlyn is one more example of a circumstance when a small business owner might benefit from having an HR Business Partner on speed dial.
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