Gender Identity & Expression

By BLR and WAKEUP CALL

Last year, the U.S. Equal Employment Opportunity Commission (EEOC) obtained a $50,000 settlement for a former employee of a South Dakota supermarket who was fired for being transgender. The settlement required the employer to obtain professional antidiscrimination training annually for all of its employees, implement and distribute an antidiscrimination policy to all employees, report all future complaints of discrimination to the EEOC, and provide the former employee with a letter of apology and a neutral letter of reference.

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Keeping employment policies and practices from discriminating against transgender employees has never been more crucial.

More and more states are adding laws prohibiting employment discrimination based on gender identity. Employers must take a proactive approach to ensure that policies and practices related to dress, use of bathroom facilities, and other concerns are handled in a legally compliant and respectful manner and that they are fostering a culture of diversity and inclusion. With legislators and government enforcers focused on transgender issues, now is the time for your organization to get up to speed on your compliance obligations.

Learn how to be sure your workplace policies and practices aren’t in violation of laws protecting employee gender identity and expression in the workplace. Jamison Green and Dr. Jillian T. Weiss have supplied some frequently asked questions— and answers— to this HR topic.

Q— Isn’t this solely a private matter? Should the employer be promoting transgender identity?

A— Because of the nature of gender transition on the job, it cannot be kept from those at the workplace. It is an employer’s obligation to accommodate a transgender employee so as not promote a hostile work environment. It is also in an employer’s interest to provide managers and co-workers with information on its guidelines in cases of gender transition. These actions are not intended to promote transgender identity. Beyond the facts of gender transition, and the necessary workplace guidelines, it is a private matter.

Q—What if I or others have a religious or moral objection to gender transition?

A— An employer should not ask employees to change their religious or moral opinions. Employees are entitled to their private opinions regarding the employer’s guidelines on gender transition. The employer’s policy simply follows the law in prohibiting discrimination and harassment, that is, adverse employment actions or hostile working environments based on sex.

Q— Should gender confirmation surgery be used as a criterion for restroom access?

A— No. Gender confirmation or gender reassignment surgery (GRS) is a medical process intended to aid those diagnosed with Gender Dysphoria. It may be unavailable to individuals for many reasons, including medical contraindication, lack of medical access, or financial inability.

The use of surgery as a factor is inappropriate because there are numerous types of gender confirmation surgery, which vary in their effectiveness and appearance. Such a requirement would mandate assessment of proof regarding specific details of a person’s medical history and treatment. This is problematic because such questions may impact medical privacy laws, which differ by jurisdiction.

The use of surgery as a factor is inappropriate because such surgery does not address all objections to restroom usage. Restroom patrons may feel uncomfortable with a person’s gender expression regardless of surgery, and regardless of their gender identity.

The use of surgery as a factor is inappropriate because bathroom usage does not generally involve public viewing of nudity. Therefore surgery is irrelevant to the restroom usage determination. Dressing room and locker room usage sometimes involves public viewing of nudity, and therefore the particulars of surgery could be relevant. The particular determination of appropriateness of use may depend, in part, on the availability of private changing facilities within the dressing or locker room. However, as noted above, the inclusion of gender identity in an equality ordinance does not mandate use of particular facilities by owners and managers of public accommodations. The reasonableness of usage by a particular patron, transgender or not, still remains in the hands of owners and managers.

The use of surgery as a factor is inappropriate because the standards of care of the primary medical organization in this area require successfully living as the opposite sex for a year or more prior to medical approval for surgery. Therefore, it is likely that an employee in transition will not complete his or her medical treatment for a substantial period of time. Requiring an employee who appears female to the general public to use a men’s facility, or vice versa, will likely cause more distraction and risk than it prevents.

Q—Should legal identification, such as a birth certificate, drivers’ license, or passport, be used to determine restroom access?

A— No. Many states do not currently have any explicit law permitting changes to such identification documents on any basis. While transgender people may be able to obtain some documents with a new sex designation, each administrative agency has its own rules, and it is likely that most transgender people will have documentation showing different sex designations. Therefore, transgender residents cannot reliably obtain legal identification permitting appropriate restroom access, and legal identification is not a good indicator of appropriate restroom access.

Q— What criteria should be used to determine restroom access by transgender people?

A— It should be noted that transgender people have been around for a long time and have certainly used public accommodations without creating a disturbance. This has occurred without any public law addressing specific criteria, by operation of a commonplace “rule of reason.” A person presenting in a manner appropriate to use of a particular restroom will use that restroom. If a question arises, it will be determined, as before, by the application of a reasonable person standard. If, at some point in the future, it becomes necessary to create criteria because of a documented series of problems, which is unlikely based on the experience of other employers, such criteria can then be addressed.

Q—Isn’t it expensive to provide transgender-inclusive healthcare coverage as part of a standard employee benefit package?

A— No. A study by the Williams Institute at UCLA in 2013 showed that the incremental cost of providing transgender-inclusive healthcare coverage is negligible for medium to large employers. Small employers in many states may still find carriers are pricing coverage too expensively, but employers may be able to use their leverage to get carriers to negotiate inclusive coverage at little or no cost.

Q— What should I say to employees who are upset about transgender co-workers?

A— Our company values each and every employee who contributes his or her skills to the achievement of our common goals, regardless of their protected personal characteristics or the hardships they face in their private lives. So long as they are able to meet our standards for job performance, they each have a place here, and we’ll do all we can to meet each one’s reasonable workplace needs. We hired each employee because they brought a valuable skill or set of skills to our workplace, and there’s no reason not to include people who can bring the skills that we need. We expect that all employees will be treated with respect, and that safety rules and workplace values will be supported equally by everyone.

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