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New Rules Addressing Use of Gender-Segregated Facilities by Transgender Individuals

New Rules Addressing Use of Gender-Segregated Facilities by Transgender Individuals

Effective December 26, 2015, the Washington State Human Rights Commission (HRC) adopted new rules requiring that individuals be allowed to use gender-segregated facilities, such as restrooms, locker rooms, dressing rooms, and homeless or emergency shelters, that are consistent with their gender expression or gender identity. So, for example, persons who are listed on their birth certificate as male but identify as female cannot be denied access to a women’s restroom, locker room, or other gender-segregated facilities. Local governments, as well as other covered entities, must comply with these new rules.

The new HRC rules have roots dating back to 2006, when the Legislature amended Washington’s Law Against Discrimination (WLAD) to include gender identity as a protected class. As a protected class under WLAD, transgender individuals have a right to be free from discrimination, including a right to the full enjoyment of accommodations and facilities of any place of public resort, accommodation, assemblage, or amusement. See RCW 49.60.030(1)(b). The new rules implement the 2006 change to the state’s anti-discrimination law, making it clear that transgender individuals must be given equal access to restrooms, locker rooms, and other gender-segregated facilities.

The new rules apply to local governments as a “covered entity” under chapter 49.60 RCW, both as an “employer” under RCW 49.60.040(11) and as a places of “public resort, accommodation, assemblage, or amusement” under RCW 49.60.040(2). However, non-public restrooms of a local government with less than eight employees are not subject to the new rules. The law against discrimination applies only to employers with eight employees or more. RCW 49.60.040(11). A local government with less than eight employees still needs to comply with the new rules for restrooms available for public use.

So, local government restrictions on the use of restrooms and other similar facilities based on gender must be amended to comply with the new rules, allowing those who identify as the opposite gender to use the facility of the gender they identify with. If a transgender person enters the bathroom of the gender they identify with and another person is uncomfortable with this, the rules state that it is up to the person who feels discomfort to find an alternative restroom. Law enforcement has no authority to remove the transgender person from a facility based on their gender expression or gender identity; under the WLAD and the new HRC rules, it is the transgender individual's right to be in the facility of the gender the identify with.

Besides allowing people to use the facilities of the gender they identify with, local governments are not required to make any other changes in order to comply with the new law, although the HRC rules suggest making single-occupant restrooms gender neutral. The City of Seattle adopted this requirement in August 2015, requiring that all single-occupant restrooms in city facilities and other public places (including restaurants and stores) be "all-gender" - open to both females and males - and that appropriate signage be provided.  

This issue of access of transgender individuals to gender-segregated facilities of the gender they identify with is, of course, not without controversy. As noted in this Seattle Times article, “Restroom access for transgender people, estimated to be less than one percent of the population, has become a heated issue around the country — seen by some as a civil-rights battle akin to gay marriage and by others as political correctness run amok.” But Washington State is not alone in establishing transgender individuals as a protected class under its non-discrimination law and allowing broader access to restrooms. Other jurisdictions have adopted similar protections for transgender people, including California (covering schools) and New York City.

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MRSC is a private nonprofit organization serving local governments in Washington State. Eligible government agencies in Washington State may use our free, one-on-one Ask MRSC service to get answers to legal, policy, or financial questions.

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About Flannary Collins

Flannary Collins is the managing attorney for MRSC. She first joined MRSC as a legal consultant in August 2013 after serving as assistant city attorney for the city of Shoreline where she advised all city departments on a wide range of issues. Flannary became the managing attorney in 2018. In this role, she manages the MRSC legal team of five attorneys.

At MRSC, Flannary enjoys providing legal guidance to municipalities on all municipal issues, including the OPMA, PRA, and elected officials’ roles and responsibilities. She also serves on the WSAMA Board of Directors as Secretary-Treasurer.