The Transgender Bathroom Culture Wars: What Does Massachusetts Law Require?

Transgender bathroom access is currently a hot topic. Some states, like North Carolina, have recently enacted legislation requiring individuals to use restrooms and changing facilities that correspond to the sex on their birth certificates. Other states, however, as well as federal agencies — including OSHA in its “best practices” guidelines issued in June 2015 — have come down squarely on allowing individuals with access to bathrooms corresponding to their gender identities. Where does Massachusetts stand? Massachusetts law is now clear that all company bathrooms — whether open to the public or reserved for employees — should be open to individuals based on their gender identity.

Massachusetts prohibits discrimination based on gender identity both in places of public accommodation and in employment. In legislation signed by Governor Baker on July 8, 2016, Massachusetts joined approximately twenty states in barring discrimination based on gender identity in places of public accommodation. Massachusetts has prohibited discrimination based on gender identity in employment since July 2012. Although the amendments to the public accommodation statute are not due to go into effect until October 1, 2016, the Massachusetts Commission Against Discrimination (MCAD), the state agency charged with enforcement of the Massachusetts anti-discrimination laws, has interpreted the public accommodation law as prohibiting discrimination based on gender identity through existing prohibitions against discrimination based on gender, disability, and sexual orientation. The recent amendment expressly adds gender identity to the list of protected categories.

On the bathroom access issue, in amending the public accommodation statute, the Massachusetts Legislature weighed in on the debate swirling around transgender bathrooms on the side of equal access, and the amended law expressly states that companies “shall grant all persons” access to gender-restricted facilities or gender-restricted areas in a manner “consistent” with their “gender identity.” Accordingly, fitness centers for women only, or sex-segregated bathrooms or locker rooms, must be open to individuals based on their gender identity.

The newly-enacted public accommodation legislation follows the approach that the MCAD has taken in interpreting the gender identity protections under Massachusetts’ employment discrimination law. In a Fact Sheet on Gender Identity Protections, the MCAD has alerted employers that “an employer’s denial of permission to use the bathroom of one’s identifying gender could be viewed as discriminatory.”

Massachusetts companies will need to educate their employees on these legal requirements. Violation of the public accommodations and employment discrimination laws can result in civil damages. Violation of the public accommodations law can also result in criminal fines of up to $2,500 or imprisonment for up to one year, or both. Employers who have inadequately trained their employees are at risk both from transgender persons, claiming harassment from coworkers, or from coworkers, claiming harassment based on the transgender employees’ use of the coworkers’ restrooms. To manage these concerns, Massachusetts employers should review their personnel policies and harassment trainings to make sure that transgender issues are adequately addressed.

If you have any questions about the information presented here, or have any employment law concerns, please contact Daniel S. Tarlow, chair of the firm’s Employment Practice Group, at 617 456 8013 or dtarlow@princelobel.com, or Laurie F. Rubin, the author of this alert, at 617 456 8020 or lrubin@princelobel.com.