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The use of the bathroom in the work environment according to the gender identity of the working person

On March 31 of each year, since 2014, the "International Day of Trans Visibility" has been celebrated globally, a date created with the purpose of strengthening the commitment of governments and social movements to the agendas of the trans community.

However, there is nothing to celebrate. This is because, according to the "Dossier Murders and Violence Against Brazilian Transvestites and Transsexuals in 2020"[1], published by the National Association of Transvestites and Transsexuals (ANTRA) on January 29, 2021, it is believed to remain current the estimate that only 4% of the trans female population is in formal jobs, registered in the Work and Social Security Card (CTPS) and with the possibility of promotion and career progression.

According to the dossier, 9% of trans people reported having suffered in 2020 some violation regarding the basic right to use the bathroom corresponding to their gender identity – that is, as to the gender (male/female; male/female) who identify themselves.

The difficulty in using the bathroom in public places does not occur only in shopping malls, shops or other public environments. This also happens in the workplaces.

As for the subject, since 2015 is pending trial in the Supreme Court (STF) Extraordinary Appeal No. 845.779 /SC[2], which discusses whether or not there is violation of the dignity of the trans person in case of impediment to the use of the bathroom consistent with their gender identity. Ministers Luís Roberto Barroso and Edson Fachin have already voted in favor of the recursive thesis, and are suspended from trial since November 2015 due to the request for views of Minister Luiz Fux.

However, the fact that this trial has not been completed does not prevent trans people from using in the workplace (or any other public place) the bathroom corresponding to their gender identity.

This is because,[3] according to judgment published on 10/06/2020, the Supreme Court ruled, in the file of the Direct Action of Unconstitutionality by Omission (ADO) no. 26, that until the National Congress drafts law aimed at implementing the criminalization warrants defined in paragraphs XLI and XLII of Art. 5 of the Federal Constitution (which impose the punishment of any discrimination attentive to the rights and fundamental freedoms), "homophobic and transphobic conduct, real or alleged, which involves odious aversion to someone's sexual orientation or gender identity, by translating expressions of racism, understood in its social dimension, are adjusted, by identity of reason and through typical adequacy, to the primary precepts of incrimination defined in Law No. 7,716 of 08/01/1989".

In this sense, the Supreme Court understood that, in view of the omission of the National Congress in creating a law that punishes acts of discrimination against the LGBTQIA+ population, homotransphobic conduct will be framed in Law No. 7,718/1989, which regulates acts typified as a crime of racism.

In turn, Article 4, Paragraph 1, item III, of Law No. 7,718/1989 provides for the penalty of imprisonment of two to five years for those who, due to discrimination, "provide the employee with differentiated treatment in the work environment".

Thus, if an employer prevents a trans employee from using the bathroom according to their gender identity, they will be promoting differentiated treatment in the workplace, which can constitute a crime of transphobia, according to the above-mentioned article.

It is also noteworthy that even before the decision issued by the Supreme Court, the Labor Court already manifested itself in the sense of punishing employers who hindered their employees' access to bathrooms corresponding to the gender with which the trans person identifies.

It is cited, for example, the preceding year of 2017 of the 10th Class of the Regional Labor Court of the 02nd Region[4], in São Paulo, which recognized indirect termination of the Employment Contract of trans worker obliged to use the bathroom intended for people with disabilities and also imposed compensation in the amount of R$ 20,000 as moral damages to the French multinational that employed it at the time.

A very similar situation occurred in the municipality of Rio de Janeiro, in a conviction handed down by the 49th Labor Court[5], which determined that a company in the outsourcing of services paid R$ 20,000 as compensation for moral damages to a trans employee who was prohibited by her supervisor from using the women's bathroom. In the decision, the Court highlighted that the conduct of the company was very serious, arising from prejudice and unacceptable discrimination.

There is also another precedent of 2019, in which the 3rd Class of TRT of the 18th Region[6], in Goiás, condemned a refrigerator the compensation for moral damages corresponding to R $ 10 thousand trans worker who was prevented from using the female bathroom, on the grounds that such impediment matters in violation of the dignity of the human person.

On the other hand, by analogy, this same logic could be applied to non-binary people, that is, those trans people who do not identify with any of the genders, and it is up to them to decide which bathrooms they feel most comfortable to use, and employers are responsible for ensuring safety and access to the bathroom for these people.

There is no discussion in the jurisprudence as to the obligation of employers to implement a specific bathroom for non-binary people. However, regardless of whether or not this type of bathroom is built, it is certain that the employer must always ensure that the worker has access to the bathroom that suits him best according to his gender identity.

What is seen, therefore, is that all workers, regardless of their gender identity, should be treated with respect by employers, being inadmissible discriminatory conduct.

As for transgender workers, the lack of legislation guaranteeing them basic rights to decent treatment is not an impediment to using bathrooms corresponding to their gender identity in the workplace.

[1] Dossier available at:

[2] Procedural progress available in:

[3] Judgment available in:

[4] Judgment available in:

[5] News available at:

[6] Judgment available in:


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