New Gender Laws: Where can you go?

In Washington State, a person has the right to be free from discrimination in the workplace on the basis of sex or sexual orientation. RCW 49.60.030(1). “Sex” means gender. RCW 49.60.040(25). “”Sexual orientation” means heterosexuality, homosexuality, bisexuality, and gender expression or identity. As used in this definition, “gender expression or identity” means having or being perceived as having a gender identity, self-image, appearance, behavior, or expression, whether or not that gender identity, self-image, appearance, behavior, or expression is different from that traditionally associated with the sex assigned to that person at birth.” RCW 49.60.040(26). Sexual orientation was added to the law in 2006.

In 2015, the Washington State Human Rights Commission passed rules regarding sexual orientation and gender identity including that covered entities, which includes (private) employers with more than eight employees, must allow individuals to use gender-segregated facilities, such as restrooms and locker rooms, consistent with the person’s gender expression or gender identity. WAC 162‑32‑060(1). Such an employer cannot require a person to use a facility inconsistent with the person’s gender expression or gender identity and cannot require the person to use a separate or gender-neutral facility. WAC 162‑32‑060(2).

The rules do not protect individuals who use the facility under false pretenses. See Frequently Asked Questions Regarding WAC 162-32-060 Gender-segregated Facilities (Questions and Answers Regarding WAC 162) at p. 2. The rules do prohibit asking unwelcome personal questions about an individual’s sexual orientation, gender expression or gender identity or intentionally causing distress to an individual by disclosing such information against their wishes. WAC 162-32-040(2). However, the rules do not prohibit asking legitimate questions in a polite, non-confrontational manner about a person’s presence in a gender segregated facility. See Frequently Asked Questions at p. 3. The rules do not require businesses to add gender neutral facilities. See Frequently Asked Questions at p. 3. Another helpful resource from the Human Rights Commission is the Guide to Sexual Orientation and Gender Identity (Guide).

There are few, if any, cases in Washington that address this particular issue (to date there are no appellate cases and even a basic search of the internet did not reveal any articles about superior court cases—civil rights actions for discrimination or conversely criminal charges related to misuse or fraudulent use of the law by an individual). While the resources from the Human Rights Commission are not law, a court may find them helpful and persuasive in a civil rights case filed under the law.

As written, the law addresses individuals using facilities that match a person’s identified gender. If an issue arises, it seems reasonable for an employer to speak with an employee in private to clarify the person’s gender identity. If they claim to identify as “no gender” or the claimed gender identity appears to be motivated solely for the purpose of entering the particular bathroom under false pretenses, the employer may choose to prohibit the employee from using that bathroom. If the person appears to legitimately claim “no gender” and there is a gender-neutral facility available, the employer may choose to require use of that facility (the law does not seem to address a “no gender” identity or require this action, but it may be the best practical solution).  If the employer makes a reasoned decision after a careful inquiry, ideally any pretext will be identified, and the issue resolved or any legitimate need identified and met.