May 2016 has seen two significant government announcements regarding bathroom access and transgender individuals.
First, on May 2, 2016, the Equal Employment Opportunity Commission (EEOC) issued “bathroom” guidance prohibiting employers from requiring that employees use the bathroom associated with their birth gender and prohibiting employers from requiring transgendered individuals to use a single stall bathroom, commonly called a “family restroom.” To require otherwise will be interpreted by the EEOC as a violation of Title VII of the Civil Rights Act‘s prohibition on sex discrimination. The EEOC does not exempt houses of worship from this interpretation of Title VII. (For information on the EEOC’s position, visit the U.S. Equal Employment Opportunity Commission website.)
Second, on May 13, 2016, the Department of Education and Justice Department issued letter guidance to public schools and educational institutions receiving federal funds regarding civil rights protections for transgender students. Under the guidance, schools must treat a student’s gender identity as the student’s sex for purposes of Title IX, which prohibits sex discrimination in educational programs and activities. Gender identity refers to an individual’s internal sense of gender, which “may be different from or the same as the person’s sex assigned at birth.”
Under the guidance, a school must allow transgender students access to restroom and locker room facilities “consistent with their gender identity.” A school may not require transgender students to use facilities inconsistent with their gender identity or to use single-user facilities (i.e., family restrooms) “when other students are not required to do so.” The implication is that schools declining to do so face the potential loss of federal funding and/or a civil rights lawsuit under Title IX. (Review this letter from the U.S. Department of Justice and the U.S. Department of Education.)
What do These Guidance Letters Mean to Churches?
These two announcements have minimal direct impact on churches, but indicate a clear cultural focus on protecting the rights of transgender individuals. The EEOC guidance is limited to employers who have 15 or more employees, so organizations having that number of employees will want to take note. The Departments of Education and Justice guidance is limited to public schools or those that receive federal funding. These announcements do not relate to bathroom facilities provided, for example, to church members or guests or for private schools, preschools or daycares that do not receive federal funding.
So what are Houses of Worship to Do?
First, in addition to federal pronouncements, churches need to be aware of state and local laws, as they may directly impact operations. While gender identity or gender expression is not a specifically protected class under most federal laws, 22 states and many local jurisdictions have passed laws making gender identity a protected classification. Some of these laws include exceptions for religious institutions, but this is dependent upon the specific wording of the laws. Consultation with the church’s local legal advisor is recommended to gain a clear understanding of the legal requirements in your jurisdiction.
Second, if your organization has a sincerely held religious belief regarding gender identify or expression, consider incorporating that belief into your statement of faith and policy documents. Including Scriptural or Biblical references can help support your statement of sincerely held religious belief in the event your church is challenged as being discriminatory. Then, adopt policies and procedures that are consistent with your church’s faith statement. Again, review by a local legal advisor is recommended.
Third, discuss religious expression liability insurance coverage with your organization’s insurance agent or broker as an additional protection against claims against your institution.
Finally, act consistently and with compassion. Religious institutions can run into trouble when they treat similar situations differently – for example, making accommodations for a particular individual, but not for another – or when they act contrary to what is set out in their statement of faith and policy documents.