Transgender people are employed in every industry and profession throughout the country, and deserve a safe and inclusive workplace. Transgender coworkers do not expect any special treatment. They simply want to be respected.
Although employment discrimination based on gender identity is illegal almost everywhere, many transgender people still face harassment and unfair treatment on the job. Helping to ensure that your workplace is free of discrimination and harassment is very simple. The following tips can help you comply with the law while making work safe and welcoming for all employees.
Gender Discrimination is Illegal
Although there are not any specific federal laws protecting transgender people, there are many court decisions that support covering transgender individuals under Title VII, The Civil Rights Act. In Glenn v. Brumby in 2011, the court decided that firing a transgender female was discrimination. In Radtke v. Miscellaneous Drivers & Helpers Union Local in 2012, the court decided it was wrong to terminate the benefits to a legal spouse of a transgender individual. The US Attorney General, Eric Holder, agreed in 2014 that “employment discrimination for transitioning from one gender to another is illegal sex discrimination under the Civil Rights Act.”
In California, the Fair Employment and Housing Act (“FEHA”) explicitly protects transgender people in the work place due to the passage of Gender Nondiscrimination Act of 2003. Similarly, there is protection for transgender people in public accommodation by way of explicit protection under the Unruh Act (Cal. Gov’t Code Sec. 51(b), Cal. Civil Code sec 1801 et seq, as clarified by AB 1400, the Civil Rights Act of 2004).
California recently issued new guidance on transgendered persons in the workplace, which can be found here.
A business that includes “gender identity” in its non-discrimination policy should be prepared to manage a gender transition. That means understanding the process (i.e. it is not an overnight thing) and ensuring that management and human resources should be supportive. It is a good idea to have a go-to person for the transitioning employee. Someone who can provide guidance and manage their transition in the workplace in terms of adjusting records, working with insurance carriers, scheduling time off that may be needed, sharing the news with co-workers and clients, and anything else that might be needed. Employers need to ensure that transitioning employees are treated with dignity, courtesy and consideration.
Workplace transition guidelines should be flexible enough to tailor to specific needs of a transitioning employee, while specific enough to provide a consistent framework that eliminates confusion and potential mismanagement. For example, one employee may prefer a quick start in which all his/her co-workers and peers are informed about the transition at the end of the work week, and comes to work the following week presenting in the new/desired gender role. Another employee may prefer a more gradual transition, in which colleagues are notified of the transition plan, but the employee does not actually present in the new gender role for several weeks. However, in both cases, the same designated contact is responsible for helping each transitioning employee and the employee’s supervisor manage the workplace transition process.
The following are examples of gender transition guidelines that can be implemented by transgender-inclusive businesses:
There are a number of areas, such as usage of facilities, dress codes and transitioning, where employers can create policies to protect transgender employees. Implementing these protections for transgender employees is good business practice and easy to do.
- Appropriate Pronoun – Seems simple enough, but when addressing employees who are transgender, we should use the pronoun they request. This is the right of the employee. They do not need to have a court-ordered name change or a gender change before we honor their request. Refusing to do so is discrimination.
- Facilities Usage – Usage of the facilities, such as bathrooms and locker rooms can become a big issue for transgender employees since they are usually separated by gender. Having transgender employees use a bathroom of a gender they don’t identify with or having them use a special bathroom singles them out and promotes segregation that may make them fearful for their physical safety. A better practice is to allow them to use the facilities of the gender they identify with. A person who identifies as a man would use the male facilities and one who identifies as a woman would use the female facilities. Another option is to have gender-neutral facilities. This can be done by having facilities where a single individual can occupy it at a time or having lockable stalls in a shared facility.
- Dress Code – In the matters of dress, a transgender employee should be allowed to dress in the manner of their gender identity as long as it is within the company’s dress code. If a transgender employee cross dresses outside of work, it is not for the company to question the individual about it or take any action against them because of it.
- Review Health Care Coverage – Medically necessary treatments and procedures, such as those defined by the World Professional Association for Transgender Health’s Standards of Care for Gender Identity Disorders, should be included in employer-provided healthcare and short-term disability coverage. Medicare explicitly excludes coverage for transition-related healthcare. Medi-Cal, however, provides coverage for transition-related care on a case by case basis. A person seeking such care must obtain a valid Treatment Authorization Request (“TAR”) from their provider. Case law supports the position that blanket denial of transition-related care by Medi-Cal is unlawful.
- Update Personnel Records – Change a transitioning employee’s name and gender in all personnel and administrative records, including internal and external personnel directories, e-mail address and business cards.
- Respect the Employee’s Privacy – Many non-transgender people have a lot of questions about their transgender coworker’s gender transition. However, it is inappropriate to ask a coworker – transgender or not – questions about their private medical history, such as whether they have had surgery. It is likely that some coworkers feel comfortable enough with one another to discuss private issues, but it is important that you not assume that your transgender coworker will want to discuss their private health care matters with you if you ask.
Here is a model Transgender Employment Policy which covers most of the above issues.
It is important for companies to prepare non-discrimination policies and to have sensitivity trainings. When they do so gender identity should be included in those policies. What an employee believes personally or what their opinion is doesn’t matter; company policy must be followed. And having clear expectations of how employees should be treated will ensure that they are informed about expectations and repercussions. This will go a long way towards the protection of transgender employees
Education and training about gender identity can take the form of small, informal discussions, modules that are incorporated into a larger diversity training curriculum, or full-fledged training and educational programs on transgender issues conducted by outside trainers and facilitators. Communication and diversity training regarding gender identity in the workplace should be comparable to other policy announcements and training initiatives. For instance, if an employer provides online harassment training that incorporates race and sex, it should also incorporate gender identity.
Sometimes one of your non-transgender employees may have difficulty abiding by your workplace policy, standards, and training. This could mean failing to show respect and dignity to their transgender coworker. Others may mistakenly use the transgender coworker’s old name out of habit and may need to be gently reminded about the new name or pronoun. Other times, the per-
son may have trouble separating their personal values from the community values of the workplace. In those instances, it is helpful if you talk to them about how their behavior affects not only your transgender coworker, but the workplace environment you are attempting to create.