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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.
AmericanPsychological 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.
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.
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:
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.
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.
Employing Transgender Workers: Tips for Promoting Tolerance and Respect andGetting 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.
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:
Create Guidelines for Gender Transitions
If the organization makes advance preparations, the process is likelier to be smooth.
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.
Draft Gender Transition Plan.
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:
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:
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
Organizations are proactively dealing with this issue. Following are two examples of employers’ comprehensive gender transition guidelines:
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.
Fortune 500 Takes Lead in Transgender Inclusion.
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.
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.
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 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.
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.
Other federal laws familiar to HR practitioners should also be reviewed in light of how they apply to transitioning workers or transgender hires:
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.
SHRM's State Chart: Equal Employment Opportunity/Discrimination Laws.
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, SHRM's State Family, Parental, Adoption Leave Laws
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.
Transgender Case Decisions and
Canadian Laws Don’t Guarantee Inclusion for Gays.
Templates and Tools
Agencies and organizations
1 Human Rights Campaign. Workplace gender transition guidelines. Retrieved from
2Americans with Disabilities Act of 1990, as amended. Retrieved from
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
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