Myriad questions abound in our current times regarding transgender issues, legal and otherwise. For nonprofit leaders, what legal compliance, privacy considerations, and other implications arise for their organizations’ facilities and programs in light of transgender issues? Should nonprofits develop a transgender bathroom or program policy and, if so, what elements should be included? More specifically, how do nonprofit organizations across the spectrum – including those seeking to promote LGBT equality, those with religious missions and convictions that conflict with transgender advocacy, and those serving youth – address such policies from a legal compliance standpoint?
The term “transgender” generally refers to people whose gender identity or expression differs from their biological sex. Following in the wake of the U.S. Supreme Court’s recent rulings on same-sex marriage and the legislative trend of new state and local anti-discrimination laws protecting sexual orientation and gender identity, transgender advocacy is steadily increasing in scope, intensity, and media attention.
In May 2016, the Obama Administration issued a directive that all public schools allow transgender students to use bathrooms, locker rooms, and other sex-segregated facilities that match their self-perceived gender identity. Under this new rule, schools must defer completely to the students’ professed gender identity. Any individual stalls must be available to all students. The price tag for noncompliance is potential loss of schools’ Title IX federal funding.
Less than two months before this edict, the North Carolina legislature passed contrary legislation prohibiting transgender bathroom access. Litigation has thus resulted between North Carolina and the federal government, with issues framed along the lines of dignity, privacy, emotional harm, and distress – both for transgender persons and others, but with contrary perspectives.
People have reacted with varying degrees of opposition, support, and foreboding. For example, an ACLU Georgia chapter director, Maya Dillard Smith, recently resigned her position after her young daughters encountered three transgender persons in a women’s bathroom. According to one news report, Ms. Smith stated that her children were “visibly frightened, concerned about their safety and left asking lots of questions for which I, like many parents, was ill-prepared to answer.” She reportedly advocates a “delicate balance [between] competing rights, to ensure that any infringements are narrowly tailored . . . and mindful of unintended consequences.”
Legal Considerations Amidst Uncertainty
What are the applicable legal requirements for nonprofits, with respect to their bathrooms, locker rooms, and program access? Generally speaking, they are in the midst of transition and uncertainty.
One threshold question in evaluating a nonprofit’s legal requirements is to determine whether the organization is a “public accommodation” and therefore subject to state or local anti-discrimination laws that cover gender identity. State and local laws defining the term “public accommodation” are generally quite expansive in scope. For example, the Illinois Human Rights Act defines the term as including a “place of public gathering” generally, as well as specifically hotels, restaurants, movie theaters, auditoriums, stores, libraries, museums, and parks. Some state laws provide religion-based exceptions, such as for faith-based schools; others do not. (Note that no federal law similarly prohibits discrimination on the basis of gender identity – or sex – in places of public accommodation.)
Notably, no court has ruled that a church is a public accommodation, even though it may welcome hundreds or even thousands through its doors each week. Likewise, many nonprofits operate extensive programs that are nonetheless private, not open to the public, and therefore not a public accommodation.
Provided that an organization’s space is not a “public accommodation” under applicable law (and apart from the Obama Administration’s directive aimed at public schools), no legal requirement thus exists mandating transgender access to the organization’s bathrooms, locker rooms, and other gender-designated activities. Organizations that do not provide public accommodation thus may choose whether to allow transgender access.
Potential Liability – Risk Management and Safety
Apart from legal compliance aspects, another key question is whether the organization should refuse transgender access in normally private spaces like bathrooms and locker rooms based on risk management and safety. Generally speaking, nonprofits may be held liable for negligent acts that harm others. In addition, nonprofit leaders may be held personally liable for decisions or actions that constitute gross negligence, reckless disregard for safety, or willful misconduct.
To illustrate, consider a transgender adolescent who is subjected to bullying and physical violence when using a nonprofit’s restroom, where no unisex restroom is available. Alternatively, could a nonprofit that regularly serves children increase potential legal exposure by adopting an open transgender bathroom policy? What if a school decides to provide unisex bathrooms and changing rooms for its students, via individual rooms? How will the school monitor and safeguard individual facilities from potential illicit drug activity, sexual misconduct, or other misbehavior? In the event of resulting harm, could parents and their children hold the school authorities liable for inadequate supervision or other harm?
These are all new legal questions that may well get litigated as transgender issues continue to unfold. Thankfully, the applicable legal framework remains the same, within tort-related negligence concepts. For example, a key liability question is whether the actions taken by the leadership were “reasonable” and sufficiently implemented to protect against “foreseeable” harm? Stated differently, what would an objectively reasonable person do in a similar situation (as the board and/or supervisor), and what harm would be reasonably foreseeable?
If a law required transgender access and the organization took other appropriate safety measures to avoid foreseeable harm, then presumably no liability would result. Otherwise, the legal answer is unknown. Insurance coverage for such issues could also be questionable, since it may be unclear what measures would be considered reasonably sufficient and whether any harm to others would be reasonably foreseeable.
Another aspect is the religious freedom constitutional dimension. Many faith-based organizations abide by doctrinal sexuality principles that cover gender identity. For example, many Christians believe that identifying differently than one’s biological gender is contrary to God’s creative design. Longstanding constitutional law has established that sincerely held religious beliefs warrant legal protection, as may be appropriate under various circumstances.
Cost may also be a very significant factor. Many nonprofits may wish to provide unisex facilities, for maximum privacy and individual care. However, the expense involved in adding new rooms and configuring new space may be prohibitive. Consequently, nonprofits may need to consider other options for addressing transgender access issues.
Policy Development Amidst Complexity
The issues are complex. In addition to the above considerations, nonprofit leaders should carefully evaluate how best to demonstrate thoughtful sensitivity to the potentially conflicting interests involved. Such interests are myriad and exist on both sides of the aisle, including privacy, appropriate respect, individual dignity, and personal safety. In a nutshell, and apart from legal or cost consideration, the question may best be framed as, “How can we best show care and concern for all the people we serve?”
One answer to this question may be to develop a written policy, to provide guidance for both leaders and persons using a nonprofit’s facilities and programs. Such policy may be included in an employee handbook, program materials, and elsewhere as appropriate. For a sample written policy, please contact our law firm via email at [email protected].
These significant changes for the general public - including staff, volunteers, and leaders - warrant pro-active planning and education. Allowing uneducated staff or leaders to respond to these issues on an ad hoc basis as circumstances arise is a recipe for disaster. Follow-up staff training and related educational measures is thus critical for affirmatively addressing transgender access issues.