Gender identification issues are receiving increasing attention, especially in the workplace, where diversity initiatives, committees, and programs are becoming more common and necessary for the debate on this relevant topic. With the growing awareness of the importance of diversity in the work environment, doubts about the subject are also growing.
Exactly for this reason, before moving on to discuss the subject of this article, we think it is important to present some relevant concepts not yet fully known:
- The biological sex of an individual is a sexual determination based only on biological and physiological characteristics and chromosomal information.
- Gender identity is how an individual identifies with society, regardless of his or her biological sex.
- An individual’s sexual orientation is affective and sexual attraction, which can be to people of the same gender, of the opposite gender, or to both genders.
- A transgender is one who does not identify socially with the gender assigned to him/her based on his/her biological sex. That is, it is the individual whose biological sex is different from gender identity.
To illustrate the challenge faced by people who identify themselves as transgenders, in 2010 the Federal Medical Board defined a transgender as an individual who has discomfort with his or her biological sex, does not have "other" mental disorders, and expressly expresses, for at least two years, the desire to lose the characteristics of his or her biological sex and adopt those of the opposite sex. This concept followed the understanding of the World Health Organization (WHO), which mistakenly treated transsexuality as a mental disorder until June 18, 2018.
Evolving in its concepts, the WHO, during the 72nd World Health Assembly, held in 2019 in Geneva, removed so-called "gender identity disorder" from the official classification of diseases. One year before, the Federal Board of Psychology had already published CFP Resolution No. 01/2018, which guides professionals in psychology to not consider transvestility and transsexuality to be pathologies.
The removal of transgenderity from the WHO's list of diseases reflects the respect and maintenance of the dignity of people who identify themselves in this way. However, recognition of the scientific community is not enough; it is necessary that it is also contemplated and incorporated into the corporate culture of companies.
As increasing awareness and acceptance of diversity in the corporate world is noted, doubts also arise about forms of acceptance and conduct. One of the relevant issues that is in doubt is the use of restrooms by transgenders in the work environment.
When an employee identifies him or herself as a transgender, which bathroom will he or she use? Could imposing the use of restrooms according to biological sex, ignoring gender identity, be considered a restriction and end up generating the right to compensation?
The use of women's restrooms by transgender women and men's restrooms by transgender men is already a known topic in the Brazilian judiciary and has been under discussion by the Federal Supreme Court (STF) since 2015, but has yet to be concluded. It is Topic of General Repercussion 778 (Leading Case RE 845779): "Possibility that a person, considering the rights of personality and the dignity of the human person, being treated socially as belonging to a sex different from that with which he or she identifies and presents himself or herself publicly".
In November of 2015, after two votes in favor of using restrooms according to gender identity, Justice Luiz Fux asked for review of the record and the decision was adjourned, with no date for resumption thus far.
In the current context, without specific laws and regulations regulating the issue and without a decision by the STF, it is necessary to recognize the right of transgenders to the use of restrooms intended for the gender with which they identify, considering the importance of diversity and respect for any individual and their fundamental rights. Preventing a transgender employee from using the restroom according to his or her gender identity is a practice of discrimination, and also does injury to fundamental rights protected by the Federal Constitution, such as the right to intimacy, equality, autonomy, and the dignity of the human person.
It is important to be cautious, however, and to remember that isolated acts are not strong enough to change the mentality of everyone who lives and uses the facilities of a work environment. Moreover, the use of the restroom is only a small portion of the fight against transphobia in which society must engage.
In order to eliminate prejudice and stigmatization in the work environment, it is essential that companies implement affirmative actions to raise employee awareness, such as forming their own committees, implementing specific policies, and providing lectures on the most diverse of topics.
Meanwhile, a ruling by the STF is pending.