New Transgender Rights Regulations Lead to Need for Emergency Regulations
On July 1, 2017, the Department of Fair Employment and Housing’s (DFEH) regulations on Transgender Identity and Expression became effective. Those regulations clarified how the DFEH intended to enforce the Fair Employment and Housing Act as it protects transgender individuals in the workplace. As stated in the regulations, “Transgender” is a general term that refers to a person whose gender identity differs from the person’s sex assigned at birth.”
The regulations also require that employers permit employees to use the facilities that correspond to the employee’s gender identity, regardless of the employee’s assigned sex at birth. Employers with single-occupancy facilities (restrooms, locker rooms, showers, or other facilities that fit only one person) must use gender-neutral signage for those facilities such as “Restroom,” “Unisex,” “Gender Neutral,” “All Gender Restroom,” etc. (2 CCR 11034(e)(2)(B).)
But this is where the problem began for construction employers. Existing Cal/OSHA regulations require employers in construction, agriculture, and hazardous waste operations who do not have flush toilets to maintain a certain number of separate toilet facilities for men and women or face Cal/OSHA enforcement. There was no way to comply with both regulations for employers in these industries. This led to the need for emergency regulations. According to the official rulemaking notice, “Cal/OSHA stated that because there are many more men in the industries in question than there are women, and because non-flushing toilet facilities are generally not as clean as water carriage facilities, in Cal/OSHA’s assessment, women would be exposed to health risks by being forced to share non-flushing toilets with men.”
The new emergency regulations, effective August 14, 2017, clarify that the requirement that employers with single-occupancy facilities use gender-neutral signage does not apply to nonwater carriage disposal facilities (read: porta potties). Thus, construction and ag employers must continue to comply with Cal/OSHA regulations requiring a separate toilet facility for each sex. These emergency regulations only exempt porta potties in the above-listed workplaces from the requirement to have gender-neutral signage. So if any of those workplaces have a single occupancy facility that is not a porta potty, that facility must still have gender-neutral signage. Additionally, employees may still use the facility corresponding to the employee’s gender identity or expression (subsection (e)(2)(A)), regardless of the signage on the door.