Last week, the federal Equal Employment Opportunity Commission (EEOC) ruled that the Army illegally discriminated against a transgender civilian employee. When Tamara Lusardi was working for the Aviation and Missile Research Development and Engineering Center in Huntsville, Alabama, she was forced to only use a single-use restroom. When it was out of order and she used the women’s room, she was repeatedly confronted by a supervisor and was often referred to by her former male name and with male pronouns.
The way Lusardi was treated was justified by claims that she “is still basically a male, physically” because she had not undergone “final surgery.” The EEOC decision spells out how this form of anti-transgender discrimination based on anatomy is not allowable:
This case represents well the peril of conditioning access to facilities on any medical procedure. Nothing in Title VII makes any medical procedure a prerequisite for equal opportunity (for transgender individuals, or anyone else). An agency may not condition access to facilities — or to other terms, conditions, or privileges of employment — on the completion of certain medical steps that the agency itself has unilaterally determined will somehow prove the bona fides of the individuals’ gender identity.
On this record, there is no cause to question that Complainant — who was assigned the sex of male at birth but identifies as female — is female. And certainly where, as here, a transgender female has notified her employer that she has begun living and working full-time as a woman, the agency must allow her access to the women’s restrooms.
The decision also notes that “employees may object — some vigorously — to allowing a transgender individual to use the restroom consistent with his or her gender identity.” Still, it insists that “confusion or anxiety cannot justify discriminatory terms and conditions of employment.” Title VII’s employment protections against discrimination, even if that discrimination is premised on a “desire to accommodate other people’s prejudices or discomfort.” In fact, “allowing the preferences of co-workers to determine whether sex discrimination is valid reinforces the very stereotypes and prejudices that Title VII is intended to overcome.”
Forcing Lusardi to use a “single shot” restroom “isolated and segregated her from other persons of her gender” and “perpetuated the sense that she was not worthy of equal treatment and respect.” This, as a result, “deprived her of equal employment opportunities.”
Lusardi told BuzzFeed the hopes the decision “will help other transgender people feel safe enough to bring their full, authentic selves to work. We should be judged on the performance of our duties.”
Kris Hayashi, Executive Director of the Transgender Law Center, which represented Lusardi, called the decision “groundbreaking,” adding that it ensures that all people “get to have a fair chance to earn a living and be ourselves at work.”
This ruling follows a similar 2012 ruling from the EEOC based on Title VII in favor of a transgender woman who was denied employment based on her gender identity. Since then, the Department of Labor has also issued guidance stating that transgender employees of the federal government and its contractors are covered by nondiscrimination protections based on sex. These rulings, however, are not binding on courts and gender identity protections are still not enumerated under federal law.