A public accommodation is any place that provides the general public with goods and services. Public accommodations include most social services, libraries, retail stores, gas stations, hospitals, health clinics, restaurants, grocery stores, and homeless shelters. When using public accommodations, transgender people may experience discrimination despite the existence of civil rights laws that prohibit certain businesses from discriminating against customers. In some cases, this is because they are not listed or protected by a particular law. They may be treated differently than those who are not transgender, and may even face the threat of violence.
Federal nondiscrimination laws do not prohibit discrimination in public accommodations on the basis of gender identity, sexual orientation, or sex. They only specify that race, color, national origin, religion, and disability are protected characteristics. However, most states and the District of Columbia outlaw discrimination on the basis of sex, and some courts do interpret the category of "sex" to include gender identity.
State and Local Laws
Some states, counties, and cities also expressly prohibit gender identity and sexual orientation discrimination in connection with public accommodations. These laws typically give transgender people the following rights: the right not to be refused entry, participation, or services on the basis of gender identity; the right to be free from harassment; and the right to present oneself in a way that is consistent with one’s gender identity. A business covered by these local or state laws may be discriminating if it knows about serious instances of harassment perpetuated by its staff or customers and does not provide a remedy.
In some cases, other civil rights laws cover businesses that are public accommodations. For example, hospitals are often considered public accommodations and they are covered by the federal Affordable Care Act and hospital accreditation standards, which prohibit discrimination on the basis of gender identity.
"Public accommodations" refers to businesses, not public restrooms. However, access to restrooms that are open to the public may also be subject to a public accommodations law. Denying a transgender person access to a public restroom consistent with their gender identity might qualify as discrimination, depending on specific state and local laws. Some states, however, have sought to control the access of transgender individuals to public restrooms. For example, North Carolina passed a “bathroom bill” (the Public Facilities Privacy & Security Act) in 2016, but the state repealed its most controversial provisions a year later after significant national backlash. Many states do not yet have case law on this issue, however.
As a transgender person, you should use the restroom that corresponds to your gender identity, though you should be aware that certain states are attempting to enact or have enacted discriminatory laws designed to prohibit this. Some states courts have ruled on the issue of whether a transgender person has the right to use a school bathroom that corresponds to their gender identity and held that treating someone differently based on their transgender status is a form of discrimination. The right to use restrooms that match your gender identity is also recognized in the workplace. In some jurisdictions, discrimination against transgender individuals is construed as sex discrimination rather than gender identity discrimination.
Recourse for Discrimination
You should consult a civil rights attorney and, when appropriate, file a complaint of discrimination if you are denied equal access to a restroom. Complaint procedures vary from location to location. In some cases, you can allege sex discrimination if a law does not specify gender identity discrimination but does include protections against sex discrimination.
In the complaint, you should specify the date, time, location, and witnesses who observed the discriminatory acts. You should also provide a detailed description of the actions you believe were discriminatory. Generally, agencies will call you to discuss your complaint, and in some cases they may investigate or ask you to meet with the business to participate in mediation. In some jurisdictions, the agency will make a finding, while in others you may have the right to sue after the investigation is concluded. However, any subsequent remedies may be limited.