THE BLOG

Why Bathrooms Are a Civil Rights Issue

09/07/2010 05:05 pm ET | Updated May 25, 2011

Although it is not frequently acknowledged, bathrooms have been contested civil rights sites for several decades now. The civil rights movement during the 1950s fought to end the prevailing practice in some parts of the country of prohibiting African Americans from using so-called "white" bathrooms. In the 1970s, the women's movement made bathrooms a political and legal issue when employers were slow to accommodate the bathroom needs of the growing number of women who were joining the workforce. And in the 1980s, the disability rights movement pushed to require the construction of buildings in ways that allowed individuals who use wheelchairs to enter and use bathrooms.

During each one of these civil rights struggles, there were conservative critics who dismissed bathroom-related advocacy by minority groups as unnecessary and even silly. A similar response is taking place today as the LGBT rights movement pushes to prohibit employment discrimination against transsexuals.

One conservative group has called the proposed federal Employment Non-Discrimination Act (ENDA)--which would prohibit employers from discriminating against individuals on the basis of sexual orientation and gender identity--as the "Transgender Bathrooms for Business Bill." Similarly, Charles Baker, the Republican candidate for governor in Massachusetts, has dubbed a proposed state law that would prohibit discrimination on the basis of gender identity as "the bathroom bill" and vowed to veto it if he is elected.

Behind all of this mocking, there is a serious issue, namely, that some employers believe it is appropriate to fire transsexual employees because of which bathrooms those employees choose to use. For example, in a recent case from Georgia, an employer fired a male-to-female transsexual employee on the ground that her use of female bathrooms might upset some of the other bathroom users and potentially expose the employer to legal liability.

To my knowledge, there has not been a single reported case of harassment by a transsexual employee of other employees in a workplace bathroom. The reports that we do have, many of them coming from lawsuits, is of the precise opposite, that is, of transsexual employees who have been harassed by employers and co-employees because of which bathrooms they decide to use.

Those who object to sharing bathrooms with transsexuals should pause to think what it must feel like to be quizzed by an employer about the precise characteristics of one's body only to be potentially forced to use bathrooms that are designated for the other sex. It seems to me completely understandable for someone who considers herself to be a woman, for example, to choose to use workplace bathrooms that are designated as "female." And when an employer forces a male-to-female transsexual employee to use a male bathroom, that should be deemed illegal discrimination, in the same way that it is now settled law that an employer illegally discriminates when it designates bathroom use according to race, or does not provide equal bathroom facilities for women, or does not make bathrooms accessible to employees with disabilities.

One of the effects of civil rights claims is that they can lead us to question long established practices that, whether intentionally or not, have excluded certain groups from full participation as equal members of society. In the long run, it may be that the political and legal activism on behalf of transsexual employees will make society realize that the division of bathrooms into two categories (one male and the other female) is mandated by neither God nor nature. Indeed, it is unlikely that the world as we know it will come to an end if more public bathrooms are designated as "unisex" so that they can be used by anyone.

But, in the meantime, employers should not be allowed to force employees to use bathrooms that are designated male when the employee does not consider herself to be male (and the same applies to the forced use of female bathrooms by female-to-male transsexuals). At the end of the day, this is not an issue about just bathrooms; it is also a question of equality, decency, and the treating of transsexuals with the respect that they deserve.