Thursday, May 25, 2017

Transgender Basics

In 2016, 1.4 million adults in the United States identified as transgender.  Federal Circuit Courts have consistently ruled that Title VII prohibits discrimination in employment based on an applicant’s or employee’s transgender status.  The EEOC has issued guidelines encouraging employers to avoid discrimination based on transgender status.  At least 20 states and more than 200 cities and counties have laws that specifically protect transgender individuals from employment discrimination. Now, a federal district court in Pennsylvania has ruled that the American with Disabilities Act protects the medical condition known as gender dysphoria, defined as “strong persistent feelings of identification with the opposite gender and discomfort with one’s own assigned sex that results in significant distress or impairment.”  Although it’s too soon to tell how that decision will hold up if appealed, or how other courts might decide the issue, it now seems possible that transgender individuals can seek reasonable accommodation, as well as disability discrimination protection, under the ADA.

Case law on this topic continues to develop, and relevant legislation continues to be introduced, debated, and sometimes passed. Employers need to stay informed about both, and they need to be prepared to react sensibly when transgender status becomes an issue in their workplace.  Here’s how: 
  • Get educated.  Make sure that upper management and HR staff understand what it means to be transgender and what’s involved in gender reassignment.
  • Know the applicable law.  Most employers are subject to Title VII and the ADA.  Find out whether state or local laws protecting transgender individuals also apply, and if so, what they require.
  • Figure out how healthcare benefits will work for transgender employees.  If an employee seeks insurance coverage for gender reassignment surgery, will it be provided? Must it be?
  • Review policies on bathroom use and facility access.  The EEOC has issued a fact sheet on this topic, and expects employers will allow transgender employees equal access to bathrooms assigned to the gender with which the employee identifies.
  • Get ready to educate your workforce.  If an employee identifies as transgender and begins the process of gender transition, his or her co-workers may need information and guidance.  At a minimum, co-workers need to know that policies against discrimination and harassment protect transgender individuals, and that those policies will be enforced.
  • Think about names and pronouns.  Transgender employees may change their names.  At some point, an employee in gender transition will want to be referred to as “she” instead of “he” or “he” instead of “she”—or an employee may prefer the gender-neutral pronoun “they.” Be ready to manage those changes without fuss.

There are resources available for employers who want to stay up to date on transgender issues, and for employers who want to support their transgender employees.  Two of our favorite bloggers, Robin Shea and Eric Meyer, have written on this topic recently, and offer great suggestions and links to other resources.  SHRM offers several excellent articles on these issues. The Human Rights Committee, an LGBT advocacy group, has published Workplace Gender Transition Guidelines.

Published by Judy Langevin