Recent news coverage of political battles over bathrooms for transgender persons has concentrated on the issue in schools, but the issue can also arise in the employment context.  Federal agencies such as the Equal Employment Opportunity Commission (the EEOC) and OSHA now unequivocally support transgender persons having access to bathrooms matching their gender identity, concluding that discrimination on the basis of transgender status (and sexual preference for that matter) is discrimination “because of sex” under Title VII of the Civil Rights Act of 1964.

The agencies base their position on a 1989 U.S. Supreme Court decision on sex stereotyping, Price Waterhouse v. Hopkins.  Lower federal courts took years to apply the Price Waterhouse case’s reasoning to cases involving sexual preference and transgender status, but they are increasingly doing so, though the lower courts determining the law in Texas have not yet weighed in.  The Supreme Court has not yet revisited Price Waterhouse as it may relate to gender identity and sexual preference, but it is looking increasingly likely it will have to do so one day.  In the meantime, lower courts will have to struggle with the issue.