Eight states (New Jersey, Maine, Illinois, California, Minnesota, New Mexico, Rhode Island and Washington), Washington D.C., and many cities and counties explicitly prohibit employment discrimination on the basis of gender identity and expression. While no federal law explicitly prohibits employment discrimination on that basis, courts increasingly interpret the federal law banning sex discrimination to protect transgender employees who are discriminated against for failing to conform to sex stereotypes. Other courts have applied state non-discrimination laws to transgender employees as well. As a general rule, remember that the law in this field is evolving, and employers are not always aware of advances in the courts. Lambda Legal encourages transgender employees to consult with us or other attorneys about relevant legal developments.
Transitioning on the Job
Prepare carefully. Read your company’s nondiscrimination policy and find out if laws in your area prohibit discrimination based on gender identity or expression. Decide which person in your workplace you will come out to first; your choices might include a Human Resources representative or a supervisor. Your decision should take into account the general climate of your workplace and who your allies might be. Approach people in a spirit of professionalism and teamwork. Remember that you will need to notify your employer if you legally change your name. Keep records at home of all workplace conversations that you have about your transition.
Your coworkers should be informed of your transition in whatever way is most comfortable, consistent with any work rules and professionalism. Some transgender employees work with their employers to draft and circulate a memo or email about their transition. Other employees have a meeting with their coworkers. You may also recommend diversity training. Talk with your employer about which approach makes sense.
The law requires your employer to provide a restroom for all employees. However, your supervisor may use assumptions about other employees’ feelings as an excuse to deny you gender-appropriate restroom access. In many workplaces, transgender employees use the restroom that corresponds to the gender they identify as, which helps to maintain consistency throughout the transition process. Single-occupancy unisex restrooms with doors that lock may be another option. State or local laws might affect how your company handles restroom issues. In 2002, a federal appellate court endorsed the right of an employer to allow employees to use gender-appropriate restrooms despite complaints from another employee.
Older decisions have held that employers have the right to implement and enforce dress codes with different requirements for male and female employees. However, numerous courts have held that sex-specific dress codes must not place significantly unequal burdens on men and women. To the extent that it is comfortable for you, dress in accordance with the dress code requirements applicable to the gender to which you are transitioning.
Crossdressing on and off the Job
If you decide to come out as a crossdresser to your coworkers but do not intend to crossdress at work, be aware that confidentiality cannot be guaranteed. If you do crossdress at work, avoid clothing that would be considered inappropriate for employees of the gender you present as. One federal court has gone as far as upholding the termination of an employee who crossdressed off the job. Even workplace non-discrimination policies that include gender identity and expression might not protect you against such unfair treatment.
Gender-Nonconformity on the Job
If you are gender-nonconforming or androgynous, a unique set of questions arises: Do you want your coworkers to refer to you by a different name or pronoun than the one they currently use? Which bathroom will you use? How will you address any questions or uncertainty about your gender identity? Consider how much information to disclose to your coworkers and supervisors, and determine the answers to questions like these by assessing the atmosphere and safety of your particular workplace. Then talk with your employer and workplace allies.
Employee Resource Groups
If your company has a lesbian, gay, and bisexual employee resource group that is not transgender-inclusive, talk to the group’s leaders about amending the mission statement. Policies that protect gender identity and expression prevent companies from forcing employees to fit rigid sex stereotypes and create a more accepting workplace for all. Consideration of the needs and issues of transitioning employees is the emerging best practice in the workplace. For example, over one hundred and forty private corporations have written non-discrimination policies covering gender identity and/or expression in their employee handbooks.
For more information, contact one of the Lambda Legal Help Desks.