By Cliff Ennico
The 24-7 media circus surrounding former U.S. Olympian Bruce Jenner’s transition from male to female has raised several questions in employers’ minds: Do we have transgender employees in our organization? If so, what are our legal obligations to them, if any?
If you are a small employer with employees in only a single state, the answer is easy: talk to an employment law attorney. The law is evolving dramatically in this area. Quite a few states have adopted statutes, or amendments to their state constitutions, prohibiting discrimination based on “sexual orientation.” To those who think that means only gay and lesbian folks, think again.
The concept is this: everyone is “assigned” a sex at birth. But quite a few individuals are not comfortable with the sex they were assigned. Their “gender identity” (the gender with which they identify) is not the same as the gender people recognize when they are taking a shower. Such folks are literally miserable in their own skin. Many if not most will undergo surgeries to change their sex, but some will not, choosing instead to reflect their “true” gender identity via their “gender expression” – such things as their mannerisms, their means of communication, and the clothes they wear (remember the cross-dressing independent film producer Ed Wood, or Corporal Klinger from the 1970’s television series “M.A.S.H.”?)
Further complicating the matter is that transgender individuals may further identify themselves as gay, heterosexual or bisexual. A man longing to be a woman may well be attracted to women the same way a lesbian would be.
If your company has operations in multiple states, chances are one of them has prohibited discrimination based on sexual orientation. Even if your state hasn’t acted as yet, it probably will in the next couple of years. There will almost certainly be federal legislation in coming years, especially if the Democrats recapture Congress in 2016. Now is the time to develop a policy to deal with transgender employees – don’t wait until someone you’ve worked with for years “comes out” and demands equal treatment.
A number of nonprofit organizations have published “model” employee policy forms for transgender employees, most prominently the Transgender Law Center (www.transgenderlawcenter.org). The basic features of such a policy should include an outright ban on discrimination against transgender employees, or retaliation against transgender employees who “come out”, along with statements that:
- Transgender employees have the right to discuss their gender identity or gender expression openly, or to keep that information private, as they choose;
- Management, human resources staff and coworkers should not disclose information that may reveal an employee’s transgender status or gender non-conforming presentation to others without the transgender employee’s consent;
- The company will change an employee’s official record to reflect a change in name or gender upon request from the employee;
- An employee has the right to be addressed by the name and pronoun that correspond to the employee’s gender identity, upon request (the intentional or persistent refusal to respect an employee’s gender identity, for example intentionally referring to the employee by a name or pronoun that does not correspond to the employee’s gender identity, is sometimes viewed as harassment by the law);
- Employees shall have access to the restroom corresponding to their gender identity – while any employee who has a need or desire for increased privacy will be provided access to a single-stall restroom when available, employees cannot be required to use such a restroom;
- Transgender and gender non-conforming employees have the right to comply with company dress codes in a manner consistent with their gender identity or gender expression; and
- A commitment that your company will use its best efforts only to enter into health insurance contracts that include coverage for transition-related care.
What about transgender employees who are undergoing surgery over a period of weeks or months? The Transgender Law Center recommends the adoption of a “transition plan” containing the following:
- The date when the transition will officially and formally occur (the date on which the employee will change their gender expression, name and pronouns);
- How, and in what format, the transitioning employee’s co-works will be made aware of the employee’s transition;
- What, if any, training will be given to co-workers;
- What updates should be made to the transitioning employee’s records, and when they will be made;
- Dates of any leave (with or without pay as required by law) that may be needed for pre-scheduled medical procedures; and
- Any necessary arrangements for name changes and photographs.
If your organization does not have a LGBT (lesbian, gay, bisexual, transgender) employee group, it is probably time to encourage the development of one as a “sounding board” for management on issues affecting this community. It is especially difficult for people who are comfortable with their “assigned” sex to understand the feelings and deep emotions of those who aren’t. But in an increasingly open and inclusive world, the effort must be made.
“Don’t ask, don’t tell” won’t cut it anymore.
Cliff Ennico (www.succeedinginyourbusiness.com), a leading expert on small business law and taxes, is the author of Small Business Survival Guide, The eBay Seller’s Tax and Legal Answer Book and 15 other books. Follow him at @cliffennico.