Discrimination Law Hot Topic: Transgender Rights in Washington– Posted by Hillary J. Collyer
A legal battle over transgender restroom access, and transgender rights generally, is being waged across the country and has been dominating recent news headlines. In March 2016, North Carolina’s governor signed into law a ban on local government measures that protect gay and transgender people from discrimination. Shortly thereafter, Mississippi’s governor signed a bill into law that grants businesses, employers, and schools immunity from state action if they wish to establish “sex-specific standards” for their “intimate facilities.” This means that transgender people’s right to use the bathroom in the state of Mississippi could legally vary by employer, by school, and even by building. In light of all the national press this issue has been garnering as of late, as an employer in the State of Washington, you may be wondering what laws apply to your business vis-à-vis your transgendered employees and/or customers.
Washington State is often at the forefront of workers’ rights, so it should come as no surprise that Washington State law has offered legal protections to transgender people for a decade now. The Washington Law Against Discrimination (“WLAD”) prohibits discrimination on the basis of sexual orientation and gender identity in the areas of employment, housing, public accommodation, credit, and insurance. These prohibitions became part of the WLAD on June 8, 2006. This means that employers may not consider sexual orientation, gender identity or gender expression when making hiring, firing or other employment related decisions. Employers are also prohibited from discrimination in compensation and other terms of employment based on sexual orientation or gender identity or expression.
Notwithstanding the fact this law has been on the books here in Washington for many years now, a legislative battle over transgender restroom access has recently heated up here in Washington after the Washington State Human Rights Commission adopted a set of new policies regarding transgender individuals using sex-specific facilities. The rules, adopted by the state Human Rights Commission on December 26, 2015, did not actually introduce any new rights, rather they were intended to clarify the state law which was enacted in 2006. These regulations make it illegal for business owners to limit sex-specific facilities such as bathrooms, showers, and locker rooms to persons with the anatomical parts of one sex. This means that bathroom, shower and locker room use in public accommodations must be based on “gender identity,” not sex.
The rules apply to businesses with 8 or more employees. They also require schools to “allow students to use the restroom that is consistent with their gender identity” and in most cases, give transgender students “access to the locker room that corresponds to their gender identity.”
It didn’t take long for opponents to respond. On March 24, 2016, conservative law makers proposed a new ballot measure known as Initiative Measure No. 1515 (“I-1515”). According to the ballot measure’s summary, I-1515 would amend the state’s discrimination law so that public and private entities could restrict access to “private facilities” to “biologically” male or female individuals regardless of their gender identity. It also calls for limiting state and local regulations overseeing gender-identity discrimination (currently at least 5 cities and 1 county in Washington, including King County, have passed their own laws prohibiting discrimination based on gender expression or identity) and allowing lawsuits against schools that permit access to facilities based on gender identity. About 246,000 valid signatures are needed by July 8, 2016, to get I-1515 on the ballot for the upcoming November election.
I-1515 has been met with vocal opposition from transgender-community advocates, State Democrats, and businesses such as Google, Microsoft and Vulcan, among others. The debate promises to rage on. Stay tuned for updates. In the meantime, if you have a question about your company’s employment policies and procedures in regard to transgender employees or any other questions about discrimination laws in Washington, I am happy to discuss this matter with you and can be reached at (206) 624-1230.