State of Texas, et al. v. United States of America, et al.

Filing 1

COMPLAINT against Vanita Gupta, John B. King, Loretta E Lynch, David Michaels, Thomas E. Perez, United States Department of Education, United States Department of Justice, United States Department of Labor, United States Equal Employment Opportunity Commission, United States of America, Jenny R. Yang filed by State of Utah, Heber-Overgaard Unified School District (AZ), Harrold Independent School District (TX), State of Texas, State of West Virginia, Arizona Department of Education, State of Alabama, State of Oklahoma, State of Georgia, Paul LePage, State of Wisconsin, State of Louisiana, State of Tennessee. (Filing fee $400; Receipt number 0539-7604002) Plaintiff will submit summons(es) for issuance. In each Notice of Electronic Filing, the judge assignment is indicated, and a link to the # Judges Copy Requirements is provided. The court reminds the filer that any required copy of this and future documents must be delivered to the judge, in the manner prescribed, within three business days of filing. Unless exempted, attorneys who are not admitted to practice in the Northern District of Texas must seek admission promptly. Forms, instructions, and exemption information may be found at www.txnd.uscourts.gov, or by clicking here: # Attorney Information - Bar Membership. If admission requirements are not satisfied within 21 days, the clerk will notify the presiding judge. (Attachments: #1 Cover Sheet, #2 Exhibit(s), #3 Exhibit(s), #4 Exhibit(s), #5 Exhibit(s), #6 Exhibit(s), #7 Exhibit(s), #8 Exhibit(s), #9 Exhibit(s), #10 Exhibit(s), #11 Exhibit(s), #12 Exhibit(s), #13 Exhibit(s), #14 Exhibit(s), #15 Exhibit(s), #16 Additional Page(s)) (Nimocks, Austin)

BestPractices
A Guide to Restroom Access for Transgender Workers
Core principle: All employees, including transgender employees, should
have access to restrooms that correspond to their gender identity.
Introduction

everyone—it may involve social changes (such
as going by a new first name), medical steps, and
changing identification documents.

The Department of Labor’s (DOL) Occupational
Safety and Health Administration (OSHA)
requires that all employers under its jurisdiction
provide employees with sanitary and available
toilet facilities, so that employees will not suffer
the adverse health effects that can result if
toilets are not available when employees need
them. This publication provides guidance to
employers on best practices regarding restroom
access for transgender workers. OSHA’s goal
is to assure that employers provide a safe and
healthy working environment for all employees.

Why Restroom Access Is a Health
and Safety Matter
Gender identity is an intrinsic part of each
person’s identity and everyday life. Accordingly,
authorities on gender issues counsel that it is
essential for employees to be able to work in a
manner consistent with how they live the rest of
their daily lives, based on their gender identity.
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. Bathroom
restrictions can result in employees avoiding using
restrooms entirely while at work, which can lead to
potentially serious physical injury or illness.

Understanding Gender Identity
In many workplaces, separate restroom and other
facilities are provided for men and women. In
some cases, questions can arise in the workplace
about which facilities certain employees should
use. According to the Williams Institute at
the University of California-Los Angeles, an
estimated 700,000 adults in the United States
are transgender—meaning their internal gender
identity is different from the sex they were
assigned at birth (e.g., the sex listed on their birth
certificate). For example, a transgender man may
have been assigned female at birth and raised as
a girl, but identify as a man. Many transgender
people transition to live their everyday life as the
gender they identify with. Thus, a transgender
man may transition from living as a woman to
living as a man. Similarly, a transgender woman
may be assigned male at birth, but transition to
living as a woman consistent with her gender
identity. Transitioning is a different process for

1-800-321-OSHA (6742)

OSHA’s Sanitation Standard
Under OSHA’s Sanitation standard (1910.141),
employers are required to provide their
employees with toilet facilities. This standard is
intended to protect employees from the health
effects created when toilets are not available.
Such adverse effects include urinary tract
infections and bowel and bladder problems.
OSHA has consistently interpreted this standard
to require employers to allow employees prompt
access to sanitary facilities. Further, employers
may not impose unreasonable restrictions on
employee use of toilet facilities.
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EXHIBIT D

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Model Practices for Restroom Access
for Transgender Employees

several court rulings, have interpreted prohibitions
on sex discrimination, including those contained in
Title VII of the Civil Rights Act of 1964, to prohibit
employment discrimination based on gender
identity or transgender status. In April 2015, the
DOL’s Office of Federal Contract Compliance
Programs (OFCCP) announced it would require
federal contractors subject to Executive Order
11246, as amended, which prohibits discrimination
based on both sex and gender identity, to allow
transgender employees to use the restrooms
and other facilities consistent with their gender
identity. Also in April 2015, the EEOC ruled that a
transgender employee cannot be denied access to
the common restrooms used by other employees
of the same gender identity, regardless of whether
that employee has had any medical procedure
or whether other employees’ may have negative
reactions to allowing the employee to do so. The
EEOC held that such a denial of access constituted
direct evidence of sex discrimination under Title VII.

Many companies have implemented written
policies to ensure that all employees—including
transgender employees—have prompt access
to appropriate sanitary facilities. The core belief
underlying these policies is that all employees
should be permitted to use the facilities that
correspond with their gender identity. For
example, a person who identifies as a man
should be permitted to use men’s restrooms,
and a person who identifies as a woman should
be permitted to use women’s restrooms.
The employee should determine the most
appropriate and safest option for him- or herself.
The best policies also provide additional options,
which employees may choose, but are not
required, to use. These include:
• Single-occupancy gender-neutral (unisex)
facilities; and
• Use of multiple-occupant, gender-neutral
restroom facilities with lockable single
occupant stalls.

The following is a sample of state and local legal
provisions, all reaffirming the core principle that
employees should be allowed to use the restrooms
that correspond to their gender identity.

Regardless of the physical layout of a worksite, all
employers need to find solutions that are safe and
convenient and respect transgender employees.

Colorado: Rule 81.9 of the Colorado regulations
requires that employers permit their employees
to use restrooms appropriate to their gender
identity rather than their assigned gender at
birth without being harassed or questioned.
3 CCR 708-1-81.9 (revised December 15, 2014),
available at http://cdn.colorado.gov/cs/Satellite/
DORA-DCR/CBON/DORA/1251629367483.

Under these best practices, employees are
not asked to provide any medical or legal
documentation of their gender identity in order
to have access to gender-appropriate facilities. In
addition, no employee should be required to use
a segregated facility apart from other employees
because of their gender identity or transgender
status. Under OSHA standards, employees
generally may not be limited to using facilities
that are an unreasonable distance or travel time
from the employee’s worksite.

For more information refer to: “Sexual
Orientation & Transgender Status
Discrimination—Employment, Housing &
Public Accommodations,” Colorado Civil Rights
Division, available at: http://cdn.colorado.gov/cs/
Satellite/DORA-DCR/CBON/DORA/1251631542607.

Other Federal, State and Local Laws
Employers should be aware of specific laws,
rules, or regulations regarding restroom access
in their states and/or municipalities, as well
as the potential application of federal antidiscrimination laws.

Delaware: Guidance from the Delaware
Department of Human Resource Management
provides Delaware state employees with access
to restrooms that correspond to their gender
identity. The guidance was issued pursuant to the
state’s gender identity nondiscrimination law.

The Equal Employment Opportunity Commission
(EEOC), the Department of Justice (DOJ), DOL,
and several other federal agencies, following

Delaware’s policy also suggests: Whenever
practical, a single stall or gender-neutral restroom
may be provided, which all employees may utilize.

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However, a transgender employee will not be
compelled to use only a specific restroom unless
all other co-workers of the same gender identity
are compelled to use only that same restroom.

is consistent with their gender identity. Where
single occupancy restrooms are available,
the Commission recommends that they be
designated as “gender neutral.”

For more information refer to: State of Delaware
Guidelines on Equal Employment Opportunity
and Affirmative Action Gender Identity, available
at: http://www.delawarepersonnel.com/policies/
documents/sod-eeoc-guide.pdf.

For more information refer to: “Guide to
Sexual Orientation and Gender Identity and the
Washington State Law Against Discrimination,”
available at: http://www.hum.wa.gov/
Documents/Guidance/GuideSO20140703.pdf.

District of Columbia: Rule 4-802 of the D.C.
Municipal Regulations prohibits discriminatory
practices in regard to restroom access.
Individuals have the right to use facilities
consistent with their gender identity. In
addition, single-stall restrooms must have
gender-neutral signage. D.C. Municipal
Regulations 4-802, “Restrooms and Other
Gender Specific Facilities,” available at: http://
www.dcregs.dc.gov/Gateway/RuleHome.
aspx?RuleNumber=4-802.

Additional Information
• American Psychological Association.
Answers to your questions about transgender
people, gender identity and gender expression,
2011: http://www.apa.org/topics/lgbt/
transgender.aspx.
• Transgender Law Center’s model employer
policy, with an extensive section on restrooms,
can be found at: http://transgenderlawcenter.
org/wp-content/uploads/2013/12/modelworkplace-employment-policy-Updated.pdf.
• “Restroom Access for Transgender
Employees” on Human Rights Campaign
website: http://www.hrc.org/resources/entry/
restroom-access-for-transgender-employees.
• National Gay and Lesbian Task Force
and the National Center for Transgender
Equality. National Transgender Discrimination
Survey, 2011: http://endtransdiscrimination.org/
report.html.

Iowa: The Iowa Civil Rights Commission requires
that employers allow employees access to
restrooms in accordance with their gender
identity, rather than their assigned sex at birth.
For more information refer to: “Sexual
Orientation & Gender Identity – An Employer’s
Guide to Iowa Law Compliance,” Iowa
Civil Rights Commission, available at:
https://icrc.iowa.gov/sites/files/civil_rights/
publications/2012/SOGIEmpl.pdf.

How OSHA Can Help

Vermont: The Vermont Human Rights
Commission requires that employers permit
employees to access bathrooms in accordance
with their gender identity.

OSHA has a great deal of information to
assist employers in complying with their
responsibilities under the law. Information on
OSHA requirements and additional health and
safety information, including information on
OSHA’s Sanitation standard, is available on the
agency’s website (www.osha.gov).

For more information refer to: “Sex, Sexual
Orientation, and Gender Identity: A Guide
to Vermont’s Anti-Discrimination Law for
Employers and Employees,” Vermont Human
Rights Commission, available at: http://hrc.
vermont.gov/sites/hrc/files/pdfs/other%20
reports/trans%20employment%20brochure%20
7-13-12.pdf.

Workers have a right to a safe workplace (www.
osha.gov/workers.html#2). The law requires
employers to provide their employees with
working conditions that are free of known dangers.
An employer’s duty to provide a safe workplace
includes the duty to provide employees with
toilet facilities that are sanitary and available, so
that employees can use them when they need to
do so. Employers also have a duty to protect all

Washington: The Washington State Human
Rights Commission requires employers that
maintain gender-specific restrooms to permit
transgender employees to use the restroom that

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their employees, regardless of whether they are
transgender, from any act or threat of physical
violence, harassment, intimidation, or other
threatening disruptive behavior that occurs at the
work site. For more information on workplace
violence, please see OSHA’s website at: www.
osha.gov/SLTC/workplaceviolence.
Workers who believe that they have been exposed
to a hazard or who just have a question should
contact OSHA. For example, workers may file a
complaint to have OSHA inspect their workplace if
they believe that their workplace is unsafe or that
their employer is not following OSHA standards.
Just contact OSHA at: 1-800-321-OSHA (6742), or
visit www.osha.gov. Complaints that are signed by
an employee are more likely to result in an on-site
inspection. It’s confidential. We can help.
The Occupational Safety and Health Act (OSH Act)
prohibits employers from retaliating against their
employees for exercising their rights under the
OSH Act. These rights include raising a workplace
health and safety concern with the employer,
reporting an injury or illness, filing an OSHA
complaint, and participating in an inspection
or talking to an inspector. If workers have been
retaliated against for exercising their rights, they
must file a complaint with OSHA within 30 days of
the alleged adverse action. For more information,
please visit www.whistleblowers.gov.
OSHA can also help answer questions or
concerns from employers. To reach your closest
OSHA regional or area office, go to OSHA’s
Regional and Area Offices webpage (www.osha.
gov/html/RAmap.html) or call 1-800-321-OSHA
(6742). OSHA also provides free, confidential
on‑site assistance and advice to small and
medium-sized employers in all states across

the country, with priority given to high-hazard
worksites. On-site Consultation services are
separate from enforcement activities and do
not result in penalties or citations. To contact
OSHA’s free consultation program, or for
additional compliance assistance, call OSHA at
1-800-321-OSHA (6742).

References:
Department of Labor, Office of Federal Contract
Compliance Programs, 2015. “Frequently Asked Questions
EO 13672 Final Rule”, available at: http://www.dol.gov/
ofccp/lgbt/lgbt_faqs.html#Q35.
National Center for Transgender Equality and National
Gay and Lesbian Task Force, 2011 at 56 (noting that only
22% of transgender people have been denied access
to gender-appropriate restrooms), available at: http://
endtransdiscrimination.org/report.html.
Gates, Gary J., How many people are lesbian, gay, bisexual,
and transgender? Williams Institute, UCLA School of Law,
2011. Retrieved 5/18/2015 from: http://williamsinstitute.law.
ucla.edu/wp-content/uploads/Gates-How-Many-PeopleLGBT-Apr-2011.pdf.
Grant, Jaime M., Lisa A. Mottet, Justin Tanis, Jack Harrison,
Jody L. Herman, and Mara Keisling. Injustice at Every
Turn: A Report of the National Transgender Discrimination
Survey. Washington: National Center for Transgender
Equality and National Gay and Lesbian Task Force, 2011 at
56 (noting that only 22% of transgender people have been
denied access to gender-appropriate restrooms), available
at: http://endtransdiscrimination.org/report.html.
Lusardi v. McHugh, EEOC Appeal No. 0120133395 (Apr. 1,
2015), available at: http://transgenderlawcenter.org/wpcontent/uploads/2015/04/EEOC-Lusardi-Decision.pdf.
Macy v. Holder, EEOC Appeal No. 0120120821 (2012);
Attorney General Memorandum, Treatment of Transgender
Employment Discrimination Claims (Dec. 15, 2015). Retrieved
5/18/2015 from: http://www.justice.gov/sites/default/files/opa/
press-releases/attachments/2014/12/18/title_vii_memo.pdf.
Memorandum to Regional Administrators and State
Designees of the Occupational Safety and Health
Administration on the Interpretation of 29 CFR 1910.141(c)
(1)(i): Toilet Facilities (Apr. 6, 1998), available at: www.
osha.gov/pls/oshaweb/owadisp.show_document?p_
table=INTERPRETATIONS&p_id=22932.

U.S. Department of Labor

OSHA 3795-2015

Disclaimer: This document is not a standard or regulation, and it creates no new legal obligations. It contains
recommendations as well as descriptions of mandatory safety and health standards. The recommendations are
advisory in nature, informational in content, and are intended to assist employers in providing a safe and healthful
workplace. The Occupational Safety and Health Act requires employers to comply with safety and health standards and
regulations promulgated by OSHA or by a state with an OSHA-approved state plan. In addition, the Act’s General Duty
Clause, Section 5(a)(1), requires employers to provide their employees with a workplace free from recognized hazards
likely to cause death or serious physical harm.