The state is learning a costly lesson when it comes to equal treatment for transgender people in the workplace.
Kelli Keawe, an office assistant with the Dept. of Public Safety, sued the state alleging discrimination for physically being a man but identifying as a woman.
Keawe says growing up as a boy who identified as a girl was hard. She suffered from bullying, exclusion and misunderstanding.
“After enduring it through my adolescence and childhood, I figured being an adult, it would be different,” she said. “I shouldn’t have to endure this discrimination as an adult.”
Yet, Keawe says the last 10 years in her job at the Dept. of Public Safety have been about as bad.
“We shouldn’t have to go to work in fear, fear when we enter the doors that we’ll be treated differently,” she said.
In her case, being treated differently meant being allowed to use just one restroom in the building and banned from the others.
“It was difficult, humiliating, retaliating,” she said.
Keawe filed a complaint with the federal Equal Employment Opportunity Commission (EEOC) and sued the state.
“If you don’t want to go in the restroom, then don’t go, but don’t call her mister when it’s obvious that’s not what her choice is,” said Keawe’s attorney, Michael Green. “It was important to do this to protect her rights and protect the rights of other transgender people.”
As for whose side the law is on, in Keawe’s case, Green says “she can use the women’s restroom and I think the law inferentially suggests, from what the governor has said and what many people say, she can use the women’s bathroom.”
The law Green is referring to is the extension of antidiscrimination laws to include transgender as a protected class.
However, Ryan Sanada, Hawaii Employers Council, says Hawaii still lacks the accompanying rules that specify the details.
“What (the law) doesn’t do is talk about accommodations that have to be provided, facilities that have to be provided to employees, that’s kind of missing in the law right now,” he said.
Sanada says there isn’t enough precedent from the courts to point the way either.
In the meantime, when it comes to accommodations and making decisions in the absence of court guidance and rules, Sanada says “there is a growing national trend that says employers should actually allow employees to use restrooms based on their perceived gender… If employers want to take a safe approach to the issue, they can follow what the mainland is doing.”
The Dept. of Public Safety has responded to an EEOC demand to know how things will be done differently going forward.
As for the separate lawsuit, the department said, “This is still a pending legal matter. We have been advised not to comment.”
Keawe recently got permission in writing from the department director to go ahead and use the ladies room.
A pending settlement is up in the air in a dispute over the language in it, but money-wise, it’s in the tens of thousands of dollars from state coffers.
“It’s not about the money. I don’t really care about the money part,” Keawe said. “It’s basically somebody’s dignity that’s been broken, and it took them 10 years too long to recognize it.”