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      With North Carolina’s controversial new law restricting public restroom use to the gender listed on a person’s birth certificate and the mounting national debate, you may be wondering where we stand in Minnesota on transgendered bathroom rights. While federal laws have made some progress in protecting transgendered persons, some Minnesota rulings have been more restrictive and problematic, especially in the employment setting.

      With North Carolina’s controversial new law restricting public restroom use to the gender listed on a person’s birth certificate and the mounting national debate, you may be wondering where we stand in Minnesota on transgendered bathroom rights. While federal laws have made some progress in protecting transgendered persons, some Minnesota rulings have been more restrictive and problematic, especially in the employment setting.

      Federal Sex-Discrimination Laws
      In April 2015, the Equal Employment Opportunity Commission ruled that federal sex-discrimination law (Title VII of the Civil Rights Act of 1964) requires that federal employees who are transitioning from male to female are allowed to use the women’s restroom. Since the EEOC issued this ruling, OSHA (the Occupational Health and Safety Administration) issued guidelines and best practices to private employers, namely to permit transgendered employees to use restroom that coincides with their gender identity. These rules specifically apply to employment settings, not rights for customers in a mall or public setting.

      Minnesota Employee Rights
      In 2001, Joni M. Thome of Wanta Thome PLC argued to the Minnesota Supreme Court in Goins v. West Group that an employer-policy requiring its transgender employees to use restrooms based on their physical anatomy violated the Minnesota Human Rights Act’s prohibition against discrimination based on gender identity. While the Court established that transgendered employees are a protected class under the MHRA, it held that, because the policy was based gender and not gender identity, it did not violate the MHRA. Despite the Court’s decision, the effect of Goins was that attorneys for Minnesota employers began advising their clients to allow transgender employees to use the restroom in accordance with their gender identity.

      Can employers designate restrooms according to biological gender?
      Yes. As noted, the Minnesota Supreme Court concluded that employers may designate restrooms according to biological gender (genitals pre-reassignment surgery) without being in violation of the Minnesota Human Rights Act. However, this is problematic, as it renders the sexual orientation and gender identity provisions of the law unnecessary.

      By contrast, the Minnesota Department of Human Rights has determined that a post-operative transgendered female was fully entitled to use a women’s restroom, where an anatomically male or female individual may still be required to use the bathroom affiliated with that gender.

      Do other employees have the right to challenge transgendered bathroom use?
      Employers can certainly allow and promote the use of bathrooms that align with an employee’s gender identity. Other employees who are uncomfortable do not have any legal right to challenge such inclusive policies. The Eighth Circuit Court of Appeals has concluded that simply permitting transgendered employees to use a gender-appropriate restroom does not create a “hostile work environment” for other employees (Cruzan v. Special School Dist. #1).

      Can an employer or other restroom provider require documentation?
      No. The Minnesota Department of Human Rights has determined that it is a violation of the Minnesota Human Rights act to require suspected transgendered persons to provide documentation to use a restroom where it does not require documentation from people it does not believe to be transgendered. In short, transgendered people may not be singled out and required to verify their gender when others are not required to do so.

      Rights for Customers and Non-Employment Settings
      For non-employment settings that are not subject to Title VII or OSHA requirements, Minnesota law applies giving employers and private companies the right to segregate bathrooms based on anatomically defined gender associations.

      Target Corporation recently issued a statement of inclusion that said it would allow employees and customers to use the bathroom that aligns with that person’s gender identity. The new policy has been met with criticism and even a petition to boycott the company nationwide. According to reports, the American Family Association has collected more than one million signatures from individuals who said they would boycott Target for this new policy.

      Wanta Thome Jozwiak & Wanta LLP on the Forefront of Transgendered Rights in Minnesota
      Wanta Thome Jozwiak & Wanta LLP has helped firmly establish transgendered employees as a protected class in Minnesota and our attorneys continue to be at the forefront of legal developments in this area. If you have suffered discrimination as a transgendered individual in the workplace or you have suffered retaliation for reporting discrimination, we want to hear from you. Please call 612-252-3570 for more information about transgendered rights in the workplace.