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Managing Gender Transition in the Workplace

   12/16/2013
 
Scope—This article explores the workplace issues employers should consider when an employee transitions from living as a member of one sex to living as a member of the other. The article examines HR’s responsibilities, the legal protections afforded to transgender persons, and ways in which organizations can manage a gender transition at work in a sensitive, respectful and inclusive manner.

Overview

This article examines how employers can best manage the workplace issues surrounding an employee’s gender transition. The term “transgender” is commonly used to refer to people who do not identify with the sex they were assigned at birth or with standard societal expectations of male and female gender roles. Transgender persons include transsexuals, cross-dressers, androgynous people and gender-nonconforming individuals, among others. See, Answers to Your Questions About Transgender People, Gender Identity, and Gender Expression [PDF].

Transgender individuals often suffer discrimination in various aspects of their lives, including employment. This article explains how organizations can treat an employee’s transition appropriately. The article also explains HR’s role in creating gender transition guidelines, ensuring good communications with employees and managers, and protecting the legal rights of transgender individuals. The article does not cover sexual orientation. It also does not examine the processes involved in gender transition.

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Background

The American Psychological Association (APA) says that “transgender” is an umbrella term for persons whose gender identity, gender expression or behavior does not conform to that typically associated with the sex to which they were assigned at birth. Gender identity refers to a person’s internal sense of being male, female or something else. Gender expression refers to the way a person communicates gender identity to others through behavior, clothing, hairstyles, voice or body characteristics. One of the transgender identities is that of transsexual—a person whose gender identity is different from his or her assigned sex. Transgender people may be straight, lesbian, gay, bisexual or asexual, and the term transgender is used to encompass a broad category of individuals.

Recent studies suggest that only 0.3 percent of American adults are transgender; however, although the transgender population is small, employers must still be prepared to handle workplace issues related to transgender employees. How an employer handles an employee’s transition has potential legal implications, as well as an impact on the transitioning employee and his or her co-workers. See, How many people are lesbian, gay, bisexual or transgender?

For people transitioning from living—and working—as one gender to living and working as the other gender, no two transitions are alike. The specific steps of transition and their timing can vary, and individuals have different preferences about how widely they want their transitions to be announced. How an employer handles transgender issues depends on many factors, including organizational culture, workforce composition, the type of work, the physical layout of the workplace, and the amount of interaction the transgender employee has with peers, superiors, subordinates, vendors and clients. Because of these variables, there is no single formula for managing gender transitions at work. The process must be uniquely tailored to meet the needs of each specific situation.

Business Case

Employers that are unprepared to handle a gender transition are likely to face not only employee relations issues but also discrimination claims. Integrating transgender workers into the workplace is good for business. For example, with transgender employees in its workplace, an organization can:

  • Attract and retain the people most qualified for particular jobs.
  • Become productive, innovative and creative, because inclusiveness means an employer can draw from a broad range of talented people.
  • Treat all workers fairly and judge them on their abilities, not on their gender identity or expression.
  • Demonstrate compliance with federal, state, local and global employment laws.
  • Fulfill diversity and inclusion initiatives.

HR’s Role

Transgender employees look chiefly to HR to help them navigate the changes that are inevitable during the transition process—and to help with concerns that co-workers may express. The degree of success in a transition is strongly influenced by a person’s ability to maintain a stable job and income during the process, and by the level of support in the work environment.

HR can support employees undergoing gender transition and also legally protect the organization by having a thorough understanding of anti-discrimination law and by keeping an eye on developing case law and proposed legislation. HR should ensure that those protections are incorporated into the organization’s policies, practices, training and communication initiatives.

When is a transition “official”?

A key question HR needs to consider is when to start regarding a transitioning employee as being officially a member of his or her chosen, new gender. There is no single means of defining a person’s legal gender, and there is no official point in time when a transgender person changes from one gender to the other.

No uniformity on this issue exists among the states, between state and federal policies, or even among federal agencies. For example, many states permit a transgender person to easily obtain a new driver’s license; this can help accommodate the medical requirement that a transgender person in surgical transition must live as a member of his or her new gender for at least a year before undergoing genital reconstructive surgery. In other states, changing the sex designation on any form of state-issued identification may be difficult or impossible.

Because the laws vary, employers should seek legal advice when addressing gender transition issues. Employers would encounter problems if they tied recognition of gender in the workplace to government agencies’ legal recognition of the person’s sex. Even more dubious is any attempt to base the person’s acknowledged gender on medical or surgical treatment milestones.

Here is a commonsense approach for employers: Until a transgender person begins working in his or her new gender role, the person should be considered a member of his or her original sex and should be treated the same as other members of that sex. Once the employee begins to present himself or herself in the new gender role at work, the employee should be considered and treated as a member of the new sex. This approach follows the growing legal trend toward recognizing that a transgender person should be treated as a legal member of the gender in which he or she lives life.

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Keeping co-workers in mind

HR may also have to deal with questions from and reactions by co-workers of the transitioning employee. Although many employees want to be supportive of an individual in transition, others may be offended by the idea of transition. Diversity in a workplace means that employees should be able to work with all people; it does not require that employees believe in or accept transgenderism. Employees are entitled to their beliefs, but they should also be required to treat the transgender person—and every other employee—with respect and tolerance.

Employers need to make clear statements in all employee handbooks, rules manuals, orientation and training that all employees are welcomed and supported. Employers should also remind managers that they are responsible for following policies on transgender issues and for maintaining a harassment-free workplace.

Employers should be aware that the single most sensitive issue for co-workers of transitioning or transgender people is often the issue of bathrooms and workplace dressing rooms. Experts advise that employers should let transgender employees use the facilities designated for their chosen gender—even if other employees are uncomfortable with that. In keeping with the highly individual nature of gender transitions, the transitioning employee, HR and management can work together to determine when the employee would start using certain facilities. SeeEmploying Transgender Workers: Tips for Promoting Tolerance and Respect and Getting Along at Work: An Employee Communication Presentation.

HR should prepare its policies so it is ready if an employee makes a gender transition, or if a new hire is a transgender person. Preparation includes first updating existing policies and procedures, then creating guidelines for handling gender transition issues. HR departments must also remember to cover these issues in employee training and communications.

Update Existing Practices

Employers should examine their current policies and practice and consider covering gender identity and gender expression in those policies. In particular, HR should see if its equal employment policies protect gender identity. Adding gender identity protection tells employees and candidates that diversity is welcome, and there is evidence that in a knowledge economy, knowledge workers are drawn to organizations that embrace diversity.

But companies cannot just add gender identity to a policy and move on. If the organization simply rolls out a policy with no explanation or training, that leaves room for questions, particularly when a transgender employee is in the organization. Part of the policy execution process is a statement from the organization that employees must follow the policy with regard to workplace behavior and relationships even if their personal beliefs about gender identity differ. See, Is It Time to Add Gender Identity to Your EEO Policy?

Following are some of the other workplace policies that HR professionals should review in light of gender transition issues:

  • Dress code policy. Avoid gender stereotypes, such as stating that men must wear dress trousers and women must wear skirts. Do not apply dress codes to off-duty conduct. Consider adding a provision that workers may dress in accordance with their full-time gender expression. See, Managing Employee Dress and Appearance.
  • Benefits policies and offerings. Do not deny benefits on the basis of gender identity or expression. Transgender workers’ spouses, domestic partners, children and step-children should be treated in accordance with applicable laws, and they should be offered the same benefits as those offered to family members of similarly situated nontransgender workers.
  • Diversity and inclusion initiatives. Make certain that transgender workers are included in the organization’s affinity groups, local outreach efforts, internal programming and related training.
  • Recruitment and selection processes. Review processes for possible disparate impact or treatment of transgender workers. Educate recruitment teams, contact outreach organizations and conduct anti-discrimination analysis as needed.

Create Guidelines for Gender Transitions

If the organization makes advance preparations, the process is likelier to be smooth. See, Prepare Now for Transgender Employees.

In the absence of a gender transition plan, both managers and HR will be unprepared, which increases the likelihood of disgruntled employees, grievances and lawsuits. SHRM provides its members with a template for a draft gender transition plan. See, Draft Gender Transition Plan.

Getting started

When an employee comes forward to say he or she will undergo transition, HR should follow what author Jillian Weiss calls a four-step mediation procedure:

  • Initial employee meeting. A time to talk to the employee about what he or she and the organization should expect through the transition process.
  • Initial management meeting. A separate meeting with the person’s supervisor to give the supervisor information about the process and to review the company’s policy and procedures.
  • Joint meeting with employee and supervisor. To go over the transition plan and address any questions or concerns.
  • Inform co-workers. Employees who will have regular contact with the transitioning employee need at least basic information about the individual’s plans, along with a reminder about company policy, expected behavior and how to deal with any concerns they might have. Weiss advises that it can be helpful if the transitioning or transgender employee is not at this session, so that employees feel more comfortable asking questions.

What to cover

HR typically meets with the employee who is preparing to transition and discusses the situation. HR should cover the employee’s preferences for handling communications with other employees and the timing of any announcement. Some of the immediate issues to resolve include these:

  • Changing the person’s name and photo on company documents.
  • Coverage under employer health and other benefits plans.
  • Communication (and timing of those communications) to the organization.
  • Security clearances.
  • Restroom and dressing room use.
  • Appearance rules.
  • Dress code rules.
  • Expectations about employee conduct and how to handle difficult conversations and potential conflict.
  • Manager and employee training if needed.
  • Client and customer notification and communications.

Employers should identify someone in management or HR as a gender transition policy leader—a person tasked with knowing the rules, providing guidance, managing the timeline and making relevant decisions whenever an employee undergoes transition.

Each transgender individual is likely to have different preferences about making the transition known at work. “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 the employee “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, but the employee does not actually present in the new gender role for several weeks. However, in both cases, the same designated contact in human resources is responsible for helping each transitioning employee and the employee’s supervisor manage the workplace transition process.”1

Real-world examples

Organizations are proactively dealing with this issue. Following are two examples of employers’ comprehensive gender transition guidelines:

  • Chevron’s LGB and T: Transgender @ Chevron document offers a particular tool—the “workplace engagement plan”—that other employers could adapt. Chevron urges transitioning employees to work with HR and managers to create this written plan that includes a list of stakeholders in the transition (such as the employee’s supervisor and co-workers who need to know); a timeline of milestones; documentation of agreements between the employee and others on topics such as use of restrooms; and a list of steps the employee should take once he or she is coming to work in the new gender role, such as getting a new ID badge photo, changing details on insurance forms and changing the employee’s name on team rosters and contact lists.
  •  Ernst & Young’s Workplace Gender Transition Guidelines also recommends a workplace engagement plan and includes steps for the transitioning employee’s “support team” of supervisor, manager and HR. The guidelines provide specific questions for the support team to ask the transitioning employee to obtain input on important changes, such as whether the employee wants to remain in the same job position after transition or would prefer to be redeployed. Ernst & Young’s guidelines also acknowledge that there may need to be “difficult conversations” with some clients when an employee changes gender, but adds that client contact is no reason for an employer to deny anyone the right to dress in a chosen gender role.

Employers can find examples of businesses that now include transgender employees in their anti-discrimination policies. For example, in the aerospace and defense industries, Honeywell, Northrop Grumman and Boeing followed Raytheon’s 2005 announcement that it would protect transgender employees from discrimination. Other companies that expanded their nondiscrimination policies in the 2000s include Google, Yahoo, Safeway, Costco, Merck, Eli Lilly, DuPont, Marriott, Hilton and Starwood. See, Fortune 500 Takes Lead in Transgender Inclusion.

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Roles for senior managers

When announcing an employee’s plan to transition, senior management can send a strong message of support for the transitioning employee and set the tone for what is expected of staff. See, Study: Transgender Workers Face Obstacles to Inclusion.

Some employers assign an executive to sponsor the transitioning employee, to help communicate top-down inclusive messages and expectations. Managers and HR should reiterate these messages regularly. The desire to minimize disruption in the office routine and to send the message that business will continue as usual should be carefully balanced with the need to educate co-workers so that they too can successfully navigate the situation.

Employee Communications

Information about the organization’s policies and guidelines for managing a gender transition should be widely accessible for employees, supervisors and managers, and HR professionals. HRC’s Workplace Gender Transition Guidelines recommends that information appear in various venues including these:

  • The organization’s intranet, particularly the HR resources pages and any pages for lesbian, gay, bisexual and transgender (LGBT) employee groups.
  • The company’s online and print code of conduct documents, covering employment nondiscrimination, equal employment opportunity policy, dress code, restroom policy and other topics.
  • The search engine used to navigate company sites and pages. Users should be able to find information by searching terms such as transition guidelines, gender identity, gender expression, transgender, transsexual, cross-dress, gender reassignment, sex reassignment, sex change or transgendered. (The terms sex change and transgendered are not preferred terminology, but are intended to capture potential searches).
  • Employee assistance program resources.
  • HR hotline resources.

The Legal Framework

A recent study, Injustice at Every Turn, conducted by the National Gay and Lesbian Task Force and the National Center for Transgender Equality, documented that transgender individuals’ unemployment rate was twice the rate for the general population, and it reported substantial rates of workplace abuse and discrimination. Workplace discrimination may be overt, such as denial of access to a workplace restroom, or it may be more subtle, such as personal questions from co-workers that invade the person’s privacy. HR professionals should be aware of the potential for discrimination against these employees and should know the federal, state and local laws that apply. Paying attention to new developments in legislation and case law is also important.

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Federal anti-discrimination protections

Title VII of the Civil Rights Act of 1964 protects individuals against employment discrimination on the basis of race and color, national origin, sex, and religion. In addition to the increasingly expansive federal interpretations of what constitutes sex discrimination under Title VII, additional legal protections are emerging for transgender employees. Many states, localities and the District of Columbia have enacted laws that expressly prohibit employment discrimination based on gender identity and expression.

Although Title VII prohibits employment discrimination based on sex, it does not expressly prohibit discrimination on the basis of gender identity or of being a transgender individual; however, a ruling in 2012 by the Equal Employment Opportunity Commission (EEOC) said that Title VII protects employees who are discriminated against because they are transgender or gender nonconforming. This means that if a transgender or gender nonconforming person is denied a job, is fired or is discriminated against at work, that person can file a complaint at his or her local EEOC office. The Justice Department later ruled that the employee in the EEOC ruling was indeed discriminated against. Although the EEOC’s ruling is directly binding only for federal agencies, it is expected to prompt many other types of employers to provide anti-discrimination protections for transgender employees.

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Other federal laws familiar to HR practitioners should also be reviewed in light of how they apply to transitioning workers or transgender hires:

  • Patient Protection and Affordable Care Act. The health reform law prohibits sex discrimination in health insurance. In 2012, the Department of Health and Human Services stipulated that the law’s prohibition against sex discrimination applies to transgender people. See, HHS: Health Plans Cannot Discriminate Against Transgender People
  • Americans with Disabilities Act of 1990 (ADA). The ADA does not cover “transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, or other sexual behavior disorders”2 under its definition of disabilities. However, some transgender individuals may suffer from depression or other medical conditions that could be covered. Employers should consult with legal counsel before making any negative employment-related decisions related to a medical disability of a transgender worker.
  • Family and Medical Leave Act of 1993 (FMLA). Some treatments and procedures for transgender employees may not qualify for employment leave under terms of the FMLA, but others may. The employer should follow normal notification procedures and review each medical certification to determine FMLA applicability.

State and local laws

Although the ADA excludes gender identity disorders from its definitions of disability, state disability discrimination laws may be broader and may not contain such exclusions. Employers should check with their attorneys regarding their states’ laws. SeeEqual Employment Opportunity/Discrimination Laws (PDF).

Some states’ medical leave laws may be broader than the federal FMLA. For example, the FMLA does not include domestic partners in its definition of spouse, but some state medical leave laws do, so in those states, an employee may be able to take leave to be with a transgender partner or spouse. Employers should carefully review the terms of their states’ laws on family and medical leave. See, Family/Parental/Adoption Leave Laws (PDF).

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Global Issues

Employers operating internationally need to know the law in all areas where they have employees. Several countries have protections in place to prevent discrimination aimed at transgender individuals. For example, in the United Kingdom, the 1999 Sex Discrimination (Gender Reassignment) Regulations are applicable to all stages of employment. Both the United Kingdom and Spain allow transgender individuals to change their name and gender on official documents without undergoing surgical changes. In the European Union, a 1996 decision in the European Court of Justice provided workplace discrimination protections for workers undergoing gender reassignment. See, Transgender Case Decisions and Canadian Laws Don’t Guarantee Inclusion for Gays.

Templates and Tools

Articles

Sample forms

Sample policies

Information tools

Agencies and organizations

Books

Endnotes

1 Human Rights Campaign. Workplace gender transition guidelines. Retrieved from http://www.hrc.org/resources/entry/workplace-gender-transition-guidelines

2 Americans with Disabilities Act of 1990, as amended. Retrieved from http://www.ada.gov/pubs/adastatute08.htm

Acknowledgement—This article was first prepared for SHRM by Teresa A. Daniel, J.D., Ph.D., owner of InsideOut HR Solutions PLLC (www.insideout.bz), an HR consulting firm that provides executive coaching for abrasive managers and training for organizations designed to help promote a healthy workplace culture. She is the author of Stop Bullying at Work: Strategies and Tools for HR & Legal Professionals, the No. 9 top-selling book for the SHRM Store during 2012. The author supplemented her own experience and research on this topic with existing SHRM Online content.
Publication Note—This article was first published for SHRM Online in December 2013. SHRM staff will update it periodically as developments in the Diversity Discipline warrant. For the most recent developments, see articles archived under the Gender Identity topic. If you find broken links or have concerns about the content, please notify SHRM by e-mailing content@shrm.org.
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