Q: Which bathroom should a transgender person use if he or she hasn't had genital surgery?
A: The details about whether or not someone has had genital reconstructive surgery, also called sex reassignment surgery (SRS), don?t tell you anything about gender identity or someone?s right to use a certain bathroom?and asking about it is a major invasion of privacy, as it involves personal medical information. It could also be illegal. For instance, if employers were to impose such a ?genital standard? for bathroom use, they would need to inquire about the genitals of everyone in that workplace. Imagine the privacy concerns that would raise!
The fact is that very few transgender people seek SRS, whether because of cost, personal beliefs, concern about surgical risks or the limitations of available procedures. In a recent survey of 6,450 transgender people in the U.S. conducted by the National Center for Transgender Equality and the National Gay and Lesbian Task Force, fewer than 25% of transgender women had undergone genital surgery, and fewer than 5% of transgender men had.
The U.S. State Department and the Social Security Administration (SSA) recently recognized this by dropping surgical requirements to change the gender listed on passports and SSA records.
http://www.lambdalegal.org/know-your-rights/transgender/restroom-faq