Can my employer require me to use the men's restroom when I'm transitioning to female?

Question:

I live and work in California. I was born a biological male, but I've always felt myself to be female. I've begun taking female hormones and plan to start dressing and living as a woman in preparation for my transition to being female.

I met with the HR manager to talk about the transition process. He was very accommodating in terms of changing my name on forms and other paperwork, and he seemed understanding. However, he said I have to continue to use the men's restroom until I have gender reassignment surgery. He claimed that my female coworkers, who have known me as a man for years, will be uncomfortable if I share their restroom facilities, and that he doesn't blame them. He is looking into the possibility of creating one unisex bathroom. In the meantime, however, he says I've got to keep using the men's room. Is this legal?

Answer:

The answer is most likely no. Both the federal government and the state of California protect employees from discrimination based on their gender identity. Gender identity is typically defined as the gender with which someone identifies, which might be different from the gender they were assigned at birth. Discrimination against employees because they are transgender falls under the category of gender identity discrimination.

Requiring you to use restroom facilities that contradict your gender identity until you have sex reassignment surgery would likely constitute discrimination under California law. At least one California court has allowed a case to proceed based on this argument.

What's less clear is whether your employer must allow you to use the women's restroom or may meet its legal obligations by providing unisex bathroom facilities. Some transgender advocates argue that prohibiting transgender employees from using the restroom facilities designated to the gender with which they identify is itself a form of discrimination, even if the employer makes unisex facilities available. So far, there has been no definitive answer from the courts on this question.

The legal issues faced by transgender employees are complicated, and the field is evolving rapidly. To learn your rights and make sure you are fully protected as you transition, you might want to talk to an experienced local employment lawyer.