Earlier this month, the Occupational Safety and Health Administration (OSHA) issued guidance for employers who employ transgender employees that addresses the issue of restroom access. According to the guidance, employers should permit a transgender employee to use the restroom that corresponds to his or her gender identity. For example, an employer should permit a transgender woman—a person who has a female gender identity but who was designated as male at birth—to use the female restroom.
OSHA sees this as a workplace health and safety issue. “Restricting employees to using only restrooms that are not consistent with their gender identity, or segregating them from other workers by requiring them to use gender-neutral or other specific restrooms, singles those employees out and may make them fear for their physical safety,” says the guidance. “Bathroom restrictions can result in employees avoiding using restrooms entirely while at work, which can lead to potentially serious physical injury or illness.”
“The core principle is that all employees, including transgender employees, should have access to restrooms that correspond to their gender identity,” said Assistant Secretary of Labor for Occupational Safety and Health Dr. David Michaels. “OSHA’s goal is to assure that employers provide a safe and healthful working environment for all employees.”
The OSHA guidance also discusses legal requirements under various state and federal discrimination laws. The guidance does not mention Maine’s law. However, the Maine Supreme Judicial Court has held that the Maine Human Rights Act requires schools to permit transgender students to use restrooms that correspond with their gender identities. It is likely that the Maine Supreme Judicial Court would apply the same rule to workplaces as well.
OSHA developed its guidance at the request of the National Center for Transgender Equality (NCTE). OSHA and NCTE have entered into an alliance “to provide NCTE affiliates and others with information, guidance, and access to OSHA resources that will help them protect the health and safety of workers, particularly by: (1) helping to ensure adequate access to workplace restrooms, and (2) understanding the rights of workers and the responsibilities of employers under the Occupational Safety and Health Act (OSH Act).”