Texas Senate passes controversial transgender ‘bathroom bill’
The Texas Senate just passed a controversial transgender “bathroom bill.” The document now goes to Governor Greg Abbott’s desk for signature.
Leanne Withrow skips breakfast most workdays, eats a granola bar or spoonful of peanut butter for lunch, and tries to avoid drinking as much water as possible.
Withrow, a transgender civilian officer in the Illinois National Guard, follows this restrictive therapy to limit the number of times he goes to the bathroom at work.
No one raised concerns about her using women’s restrooms at National Guard facilities or federal buildings until President Donald Trump, in one of his first acts in office, issued an executive order recognizing only two genders, male and female, and directed federal agencies to ban transgender and intersex people from single-sex spaces that match their gender identity.
Withrow is currently suing, claiming the bathroom ban violates her civil rights. The proposed class action lawsuit seeks to represent all federal employees affected by this order.
“An executive order that micromanages the bathrooms used by government employees is discrimination, plain and simple, and must be stopped,” Michael Perloff, chief counsel at the ACLU in Washington, D.C., said in a statement.
Another lawsuit was filed last month by a transgender transportation security officer at Dulles International Airport. Daniel Mittereder accused the Department of Homeland Security of sex discrimination by banning transgender employees from security screening and access to Transportation Security Administration restrooms based on their gender identity.
In January, the Office of Personnel Management ordered federal agencies to ensure that restrooms and other “intimate spaces” are “designated by biological sex rather than gender identity.” The Justice Department did not respond to requests for comment.
These lawsuits are the first challenges to illegal sex discrimination against the Trump administration’s bathroom ban, and a showdown that could decide essential rights for transgender people in the workplace.
Whether employees have access to restrooms that match their gender identity is an unresolved legal issue at the national level.
“This issue is just beginning to move through the courts,” said Mark Girouard, an employment lawyer and business litigator at Nilan Johnson Lewis. “My sense is that the administration is hoping to take this issue to the Supreme Court and get a favorable ruling.”
Toilets are a ‘powerful political tool’
How did the office bathroom, a mundane fixture of daily work life with its industrial metal cubicles and fluorescent lighting, become a major battleground in this country’s culture wars?
For generations, historian Neil J. Young said, toilets have been a proxy for political battles “on nearly every major issue in American life.”
From the Industrial Revolution to Jim Crow, he wrote in Politico, “Americans have used the toilet with deep anxiety about changing social norms and customs.”
Over the years, “toilets have proven to be an incredibly powerful political tool,” Young said.
Ladies’ rooms emerged in the 19th century as safe spaces as more women worked in factories. Massachusetts passed a law in 1887 requiring separate bathrooms for men and women. It was the first in a series of state laws rooted in the “separate sphere” ideology that women working outside the home needed protection, and safety concerns remain pervasive and controversial.
Trump has made these concerns a key part of his platform during his 2024 presidential campaign. Now, his administration is using federal power to overturn what it claims are liberal gender policies.
A study by UCLA’s Williams Institute found no evidence that allowing transgender people access to bathrooms consistent with their gender identity jeopardizes their safety and privacy. Rather, said Jody Herman, a public policy researcher at the Williams Institute, “if transgender people are forced to use the restroom according to their assigned gender at birth, they will be at increased risk of further harm.”
Anti-trans movement hotspots
In recent years, bills challenging civil rights gains for LGBTQ+ Americans have swept through red state legislatures across the country. In 2016, North Carolina became a hub for the movement, passing a bill known as the “bathroom bill.” According to the Movement Advancement Project, one in three transgender people currently live in states with some type of bathroom restriction.
After campaigning against what he called “transgender insanity,” Trump issued a directive during his second term restricting the rights of people who identify as transgender, including in the workplace.
Andrea Lucas, chair of the Equal Employment Opportunity Commission, said her top priority is to “protect the biological and binary realities of sex-related rights, including women’s right to access same-sex spaces in the workplace.”
The Justice Department warned that “federally funded agencies” that allow men who identify as women access to same-sex spaces risk “compromising the privacy, safety, and equal opportunity of women and girls” and creating a hostile work environment.
He also pledged to protect religious freedom. This week, the Justice Department filed a lawsuit against a Virginia county school board for allowing a transgender student to use a locker room that corresponds to his gender identity and punishing two Christian students who complained. This is the latest in a series of lawsuits over gender identity policies in schools across the country.
“Loudoun County’s decision to promote and advance gender ideology tramples on the rights of religious students who cannot accept ideas that deny biological reality,” Assistant Attorney General Harmeet Dhillon said in a statement.
The commission has previously said denying children access to the bathroom of the gender they identify runs afoul of federal court precedent.
Bathroom access is an unresolved legal issue
For more than a decade, the EEOC has maintained that discrimination based on an employee’s transgender identity is illegal. And in 2020, the Supreme Court extended federal workplace protections to LGBTQ+ employees, ruling that discrimination based on transgender status “inevitably involves discrimination on the basis of sex.”
But siding with three employees who were fired because of their sexual orientation or gender identity, the country’s top court said it did not address “toilets, changing rooms, or anything like that.”
“Whether other policies or practices constitute unlawful discrimination is a matter for future litigation,” Supreme Court Justice Neil Gorsuch wrote.
During the Biden administration, the Equal Employment Opportunity Commission issued guidance stating that unlawful harassment in the workplace includes denying access to restrooms and other gender-segregated facilities based on a person’s gender identity.
Some courts agreed, but in May a federal judge in Texas watered down the guidance, saying the EEOC exceeded its statutory authority to “define discriminatory harassment as not accommodating a transgender employee’s bathroom, pronoun, or clothing preferences.”
After the ruling, the EEOC revised its enforcement guidelines. Former EEOC and Labor Department officials who served in several presidential administrations and formed a group called EEO Leaders criticized the move to “cover up” any references to harassment based on sexual orientation or gender identity.
Although the Supreme Court took no position on these issues, they said, “It is a gross misreading of the decision to claim that the court’s silence on these specific issues means that all harassment based on sexual orientation or gender identity is not prohibited discrimination.”
Still, lawyers expect the EEOC to rescind the guidance. Additionally, the Trump administration may seek to extend the bathroom ban to the private sector.
If the government’s bathroom rules extend to the private sector, they will affect about 2.1 million transgender adults in the country, less than 1% of the population.
“This year’s executive order focuses on transgender issues, and with Republican majorities in the House and Senate, this issue could gain attention in Congress,” said Christy Keeley, an employment attorney at Seyfarth Shaw.
What are your toilet rights?
Most employers prohibit harassment based on gender identity and strive to create an inclusive environment for transgender employees. Lawyers say they are now faced with the conundrum of whether transgender individuals have the right to use the restroom of their choice, or whether there are co-workers who object to that when deciding which employees to admit.
It is an open question whether employers “can or should restrict access to restrooms and locker rooms based on biological sex,” the law firm of Jackson Lewis recently told clients.
“Employers are left guessing and trying to adjust the balance of rights,” said Nonie Shivers, an employment lawyer at Ogletree Deakins. “We’re going to have these concerns. What should we tell people? We have an obligation to provide safe restroom access for everyone.”
Further complicating matters for employers, lawyers say, is the patchwork of state laws and city and town ordinances regulating restroom use across the country.
According to the Advocacy Project, 20 states have laws banning transgender people from using restrooms and other facilities. In 2025, nine states will pass new laws or expand existing laws. But executive director Naomi Goldberg said many states have laws that protect LGBTQ+ employees and access to “critical services.”
“Multi-jurisdictional employers face a very fine line in making business decisions about how to address this thorny issue,” said Susan Desmond, an employment lawyer at McGlinchey Stafford.
