The American workforce is becoming ever more diverse. One example of this burgeoning diversity is the increasing willingness of transgender individuals to identify openly as transgender at work. Employers often do not have policies or practices in place to address the myriad of considerations that arise when an employee identifies as transgender. Rather, employers often find themselves in a reactionary position, caught unaware of the relevant issues, which can be difficult for both the employer and employee, and can fail to adequately convey positive messaging regarding a company's core values regarding diversity and inclusion. Employers can do better by proactively implementing policies and programs that are inclusive of the transgender community.
What Does It Mean To be Transgender?
To understand the term transgender, one must first differentiate between an individual's "sex," their "sex assigned at birth" and "gender." "Sex" is defined as a combination of biological and physiological characteristics, including chromosomes, hormones, internal and external reproductive organs and secondary sex characteristics. "Sex assigned at birth" is the classification of a baby as male, female or intersex based on visible genitalia at birth. The visible genitalia at birth is often assumed to predict gender, however gender is separate and distinct from the genitalia one has at birth. "Gender" refers to an individual's emotional and psychological sense of having a gender. The feeling that one is a man, a woman, both or neither (gender nonconformity) is referred to as "gender identity." Gender identity does not necessarily align with an individual's sex at birth. Related to gender identity is the concept "gender expression." Gender expression refers to appearance, traits and/or mannerisms an individual presents to communicate their gender identity. Any traits (masculine, feminine, androgynous) can be present in people of any gender or gender expression. As with gender identity, gender expression may or may not match a person's sex.1
An individual is transgender when their gender identity is different from the sex they were assigned at birth. Conversely, "cisgender" refers to a person whose gender identity aligns with the gender and sex assigned at birth (i.e., not a transgender man/woman).
The process by which a transgender person first identifies as transgender, and then changes one or many aspects of their appearance, physical, sexual characteristics from those associated with their sex at birth is often called a "gender transition." There is no one way to transition. Rather, each transgender individual transitions in their own way. The transition process has both social and medical components.
Social transitioning is the process by which an individual tells their transgender status to the people in their lives (e.g. family, friends, and co-workers). In addition, the social transition process may include changing one's name and asking to be referred to by a different gender pronoun. For many transitioning individuals the social transition will include adopting a gender expression that more closely matches their gender identity. For instance, they may chance their clothing, mannerisms and hairstyle. In addition, they may seek to legally change the name and/or sex of their identifying documents.
For some transgender individuals, a gender transition will include a medical component. Notably, a person does not have to undergo a medical procedure to be considered transgender. Rather, transgender status relates to a person's gender identity (i.e., how they feel inside as a "man" or "woman" or something in between, or neither), regardless of what steps they take to make this decision public. And, contrary to popular belief, there is no one "transgender surgery," Indeed, many transgender individuals never take hormones or undergo surgery. However, other transitioning transgender individuals seek medical treatment in the form of psycho-therapy and hormone treatment. In addition, some individuals transitioning from male to female will undergo medical procedures such as genital surgery, facial feminization surgery, and electrolysis. Likewise, individuals transitioning from female to male may undergo surgeries including genital surgery, chest reconstruction, and hair implants.
Rationale For Creating Trans-Inclusive Employment Practices: Employment Law Regarding Transgender Employees Remains In Flux
At the time of the publication of this article, 19 states2 expressly bar discrimination based on gender identity and/or expression. At the federal level, no law expressly prohibits workplace discrimination based on gender identity or expression.
Although there is no federal law that prohibits discrimination based on gender identity and/or expression, the U.S. Equal Employment Opportunity Commission (EEOC) has promulgated guidance that interprets the prohibition of "sex" discrimination under Title VII of the Civil Rights Act of 1964 to prohibit discrimination based on gender identity and expression.3 The Commission has given two rationales for this expansive view of Title VII: per se sex discrimination and sex stereotyping. In the Commission's view, discriminating against a transgender individual can at times rise to the level of per se sex discrimination (a determination based solely on sex). For instance, in the view of the EEOC it would be per se sex discrimination for an employer to offer a position to an applicant who presented as a cisgender man, but to rescind the offer when the individual presented as a transgender woman. In addition, the Commission has determined that it would constitute impermissible sex stereotyping to make a determination regarding a transgender individual based on the individual's "fail[ure] to act and appear according to expectations defined by gender."4
In line with the EEOC and the Department of Justice, some Federal courts have found that transgender individuals can bring a viable claim of discrimination under Title VII.5 In addition, the Obama administration has intervened in employment-discrimination cases to argue that Title VII prohibits transgender discrimination.6,7
Despite these rulings and the position of the current administration, the extent to which federal law prohibits transgender discrimination remains unsettled. This issue will likely remain unsettled until federal law expressly prohibits transgender discrimination or the Supreme Court clarifies whether "sex" discrimination under Title VII encompasses transgender discrimination.
In order to avoid potential pitfalls in this emerging area of law, many employers are adopting trans-inclusive employment and employee benefit policies that are sensitive to issues of gender identity and expression, to minimize risk, and to signal an inclusive workplace for all employees. These policies do not just cover transgender employees, but any employee who may not conform to gender stereotypes (i.e. a man with a high voice, a women with short hair).
Rationale For Creating Trans-Inclusive Employment Practices: Diversity and Inclusion Make Business Sense
While the law remains in flux regarding existent trans-protections, many employers have decided that they want to adopt trans-inclusive policies based on their belief that inclusive policies are good for business. The evidence supports this belief.
For instance, DiversityInc, an organization that ranks employers according to their diversity practices, has found that the 50 publicly-traded employers who DiversityInc has determined have the best diversity practices consistently outperform the Dow Jones Industrial Average and S&P 500 on a one-, three-, and five-year basis.8 These results make intuitive sense. Workers who know their employer values diversity feel a sense of security knowing they will be respected for being their authentic self. This confidence translates to increased employee happiness and productivity.
In addition, many employers have recognized that strong diversity policies are critical in order to compete for, and retain, top talent. Likewise, many employers have realized that a strong LGBT diversity policy is a key tool in building loyalty among LGBT consumers, a group with an estimated buying power in 2015 of $884 billion.9
Employer Best Practices in Addressing Transgender Issues in the Workplace
In order to avoid potential pitfalls in this emerging area of law, and to increase the level of diversity and inclusion in a company, many employers are adopting a series of trans-inclusive policies. A non-exhaustive list of such policies is set forth below.
- Non-Discrimination Policies: Although the EEOC's position on the extension of Title VII to transgender claims is not binding and there is no federal law which explicitly protects transgender employees from discrimination, employers should consider revising internal equal employment, non-discrimination and anti-harassment policies to include gender identity and expression as protected categories. Conduct Training: Employers should also make their managers and employees more sensitive to gender identity and expression by incorporating these topics in EEO and harassment training programs. A lack of awareness on transgender issues can lead to misunderstanding. Training reduces the risk of misunderstanding by explaining what a transition is and by stressing the employer's non-discrimination policy. Part of many trainings is explaining to employees that regardless of their personal beliefs about transgender individuals it is of paramount import that at work they behave appropriately and continue to work cooperatively and respectfully with their transgender colleague. It should be clearly stated that failure to behave in this manner towards a transgender colleague could result in discipline, up to and including termination. In addition to general training, employers may also consider conducting a more targeted training in this area when a transgender employee announces that he/she is transitioning. Such training will not only support the employee and help manage the specifics of the transition process, but may also foster respect, sensitivity and understanding from other employees. In planning a targeted training it is important to first check-in with the transitioning employee to determine whether or not they would like to attend. Dress codes: Employers should revise dress codes and policies to make them gender neutral. For instance, policies that specifically define the kinds of attire that males and females may wear tend to be based on sexual stereotypes and gender expectations. By contrast, policies that require professional business attire irrespective of sex or gender are recommended. For employers who have a "male" and "female" version of a uniform, employees should be allowed to wear the uniform that comports with their gender identity. Use of Pronouns: Employers should be mindful to use the appropriate pronouns consistent with the employee's gender presentation. To the extent there is uncertainty about an employee's gender, it may be appropriate to respectfully communicate with an employee regarding his or her preference in a confidential matter, and agree with the employee on a communications plan for notifying co-workers and customers of any change to pronoun or name use. Develop Guidelines for Managing Workplace Transition: It also prudent for an employer to develop guidelines and procedures to manage situations where an employee announces that he/she will be transitioning. Such guidelines serve a number of functions, including: providing support and guidance to transgender individuals; setting clear expectations for all employees thereby minimizing the risk of a disruption in productivity when an employee transitions; and developing the administrative processes needed to ensure that when an employee transitions their gender and/or name are modified in the Company's systems and those of its employee benefits administrator. Employers should approach an employee's transition as an interactive process. This may involve, for example, designating a key human resources official or manager to serve as a liaison and point of contact for the transitioning employee. The employer should have an open and continuous dialogue with the employee and set clear expectations regarding how the transition will occur, the steps that need to take place (e.g. notification to clients, coworkers and others), and the information the employer will require from the transitioning employee. Employee Privacy and Confidentiality: Employers must be mindful that although a transgender employee's transition may become a matter of public knowledge in the workplace, personal details about any employee's transition are private and entitled to confidentiality. Administrative and Personnel Records: Employers should be prepared to update or change the employee's name and sex in certain employee records. For example, employers should consider which records must reflect the employee's name and sex at birth, and which records can be modified to assist the employee in the transition (e.g. email addresses, name plates, business cards, security badges, etc.). Restroom Access: Employers should consider policies regarding access to restrooms, locker rooms and other gender-specific facilities. An employer should consider an employee's full time gender presentation and identity when making decisions regarding restroom access. It should be explained to co-workers who take issue with sharing a restroom or locker room with a transgender colleague that the transgender employee is entitled to use the facility that corresponds with their gender identity. To the extent, the employer has a single occupancy restroom or privacy changing areas, the objecting employee should be provided with the opportunity to use those facilities. In engaging in this discussion with objecting employees a very helpful resource is the "Guide to Restroom Access for Transgender Workers" put out by OSHA.10 Health Insurance and Benefits: Employers may also consider whether changes can be made to their health insurance plan offerings to better accommodate the needs of transgender employees. In addition, employers are increasingly including in their benefits offerings coverage for transgender medical procedures such as genital surgery. The limited studies to date reflect that employers who have expanded such coverage have seen very little increase in health premiums. Employers can also try to work with insurance carriers to ask that transition related exclusions, such as denial of care for medically necessary facial reconstruction for transgender women or medically necessary mastectomies for transgender men, are removed. An employer wishing to offer more robust coverage for such treatments may do so. However, prior to changing insurance coverage, an employer should speak with counsel about the benefits and risks of making such a change. Leave Policy: Employers should consider modifying their leave policy to cover transition related services. While such a policy is not clearly required under the FMLA (or most state leave laws), many employers have made the decision to treat transgender medical procedures the same they treat any other medically necessary procedures.
1See http://www.glaad.org/reference/transgender 2California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Massachusetts, Maryland, Minnesota, Nevada, New Jersey, New Mexico, Oregon, Rhode Island, Utah, Vermont and Washington 3Macy v. Bureau of Alcohol, Tobacco, Firearms and Explosives, EEOC Appeal No. 0120120821 (April 23, 2012)his decision is available at http://www.eeoc.gov/decisions/0120120821%20Macy%20v%20DOJ%20ATF.txt 4Id. 5See e.g. Chavez v Credit Nation Auto Sales, LLC, Case No. No. 14-14596 (11th Cir. Jan 14, 2016), available at http://media.ca11.uscourts.gov/opinions/unpub/files/201414596.pdf 6On December 15 , 2014, the Department of Justice issued a memo affirming that discrimination against an individual based on their transgender status violates Title VII. See Memo at http://www.justice.gov/opa/pr/attorney-general-holder-directs-department-include-gender-identity-under-sex-discrimination. 7See e.g. Leyth O. Jamal v. SAKS & Co., Civil Action No. 14-2782 (S.D. Tex). The motion to intervene by the attorney general in opposition to the employer's position that Title VII does not prohibit transgender discrimination claims, is available at http://jtweisslaw.com/wp-content/uploads/2015/01/US-DOJ-filing.pdf. 8http://www.diversityinc.com/diversity-management/top-50-stock-index-outperforms-djia-nasdaq-sp-500/ 9http://www.witeck.com/pressreleases/americas-lgbt-2014-buying-power-estimated-at-884-billion/ 10https://www.osha.gov/Publications/OSHA3795.pdf
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National Center for Transgender Equality
Gay & Lesbian Alliance Against Defamation (GLAAD)