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1. TRANSGENDER EMPLOYEES
HR ISSUES

2. GENDER DISCRIMINATION
Gender identity discrimination in the workplace occurs when an
employer discriminates against an employee because of their
gender identity. Discrimination can include:
Terminating a transgender employee after the employer finds
out about the employee's gender identity or planned transition
Denying a transgender employee access to workplace restroom
facilities available to other employees
Requiring a transgender employee to use a restroom not
consistent with the employee's gender identity or presentation
Harassing a transgender employee; permitting and/or refusing
to investigate claims of harassment by coworkers and
supervisors

3. TRANSGENDER DISCRIMINATION & LAWS
Q&A

4. 1. What terms does an employer need to know?
The phrase “gender identity” refers to one's self-identification as a man or a
woman, as opposed to one's anatomical sex at birth. Usually, one's gender identity
matches one's anatomical sex. However, for transgender people, gender identity
does not align with their anatomical sex, or the gender they were assigned at birth.

5. The phrase “gender expression” refers to how society views one's gender identity
based on cues like clothing, haircut, voice, and name: recognizing someone as a
woman or a man. Transgender people generally want their gender expression to
match their gender identity and not necessarily the gender they were assigned at
birth.

6. The term “transgender” is a blanket term used to describe someone who, in one or
more ways, does not conform to stereotypes of gender identity and/or gender
expression. This term includes: female and male cross-dressers, transvestites, drag
queens or kings, female and male impersonators, intersexed individuals, pre-
operative, post-operative, and non-operative transsexuals, masculine females,
feminine males, all persons whose perceived gender or anatomic sex may be
incongruent with their gender expression, and all persons with gender
characteristics and identities who are perceived to be androgynous.

7. A “transitioning” transgender person is one who is modifying his or her physical
characteristics and gender expression to — in effect — satisfy the standards for
membership in a gender other than the one they were assigned at birth. Some
transgender people seek medical treatment in the form of hormone therapy or
surgery to make their physical sex agree with their gender identity, while others do
not.

8. 2. What is gender identity discrimination?
Gender identity discrimination means treating individuals differently in the workplace. Gender
identity discrimination against transgender people in the workplace may include:
Being fired when your employer finds out about your plan to undergo sex reassignment
surgery.
Being fired for cross-dressing outside the workplace if your employer finds out.
Ans. Continued to the Next Slide…

9. If you as a transgender person attempt to wear clothing appropriate to your gender identity
you may be disciplined, reassigned or terminated, based on a failure to conform to a company
dress code policy that makes no effort to accommodate transgender individuals.
Being refused access to workplace restroom facilities and harassed by coworkers and
supervisors on the basis of your gender identity.
Being denied equal treatment in public accommodations, which can affect your ability to
successfully function in the workplace. For example, transgender people have been asked to
leave restaurants, hotels, stores, medical facilities, and educational institutions.

10. 3. What federal law covers gender identity discrimination?
Currently there is no federal law that universally and explicitly provides protection
for LGBT workers, and fewer than half of states have laws that protect workers
based on sexual orientations and gender identity/expression. Discrimination based
on gender identity is not specifically prohibited by the federal laws that generally
apply to discrimination in employment. Discrimination laws specifically prohibit
discrimination based on race, color, sex, religion, national origin, age, and disability.
Ans. Continued to the Next Slide…

11. The Employment Non-Discrimination Act currently being proposed in Congress is
federal legislation which explicitly prohibits discrimination in the workplace based
on sexual orientation or gender identity. The Act is modeled after current civil rights
legislation like the Civil Rights Act of 1964 and the Americans with Disabilities Act.
ENDA would protect transgender workers from being denied jobs and promotions,
fired, demoted, or otherwise discriminated against solely on the basis of their
gender identity.

12. 4. What is the difference between gender identity discrimination and
sex discrimination?
Sex discrimination is treating an applicant or employee unfavorably because of that person’s
sex, or affiliation with an organization or group associated with a particular sex. The law forbids
discrimination based on sex when it comes to any aspect of employment, including hiring,
firing, pay, job assignments, promotions, layoff, training, fringe benefits and any other term or
condition of employment.
Ans. Continued to the Next Slide…

13. Gender identity discrimination is more specific to people who don’t conform to stereotypes of
gender identity and/or gender expression. For example:
Albert identifies himself as a male. His peers continually refer to him directly as ‘Ms’ and
he repeatedly hears comments from peers about himself using female pronouns such as
‘she’ and ‘her’. Albert has asked that people address him appropriately but most make no
effort; or
You are hired for a new job and subsequently inform your new employer that you will be
transitioning. After hearing this your employer tells you that the position you were hired
for is no longer available.

14. 5. Am I protected by disability discrimination laws, since
gender identity disorder is a medical condition?
Transgender people are not protected under federal laws that prohibit discrimination on
the basis of handicap or disability. Although transsexualism has been recognized for
many years as a medical condition, both of the federal laws making it illegal to
discriminate on the basis of disability, the Rehabilitation Act, and the Americans with
Disabilities Act (ADA) explicitly exclude both “transsexualism” and “gender identity
disorders not resulting from physical impairments” from protection.

15. 6. What should I do if I am denied coverage for transition-
related health care?
Get a copy of your health insurance policy to see if there is any discriminatory exclusion
language. If so, find out what the process is to appeal a denial of coverage. You will likely
need to provide written documentation from your doctor that this treatment is deemed
medically necessary for you.
Use official statements from any of the following leading professional medical
organizations as backup for your argument that transition-related care is not cosmetic or
elective and should be covered:
American Academy of Family Physicians
American College of Obstetricians and Gynecologists
American Medical Association
American Psychological Association
American Psychiatric Association
National Association of Social Workers
World Professional Association for Transgender Health

16. 7. Health insurance plans that exclude services related to
gender transition often say they are “cosmetic” or
“experimental.” Is this true?
No. The myth that transition-related care is “cosmetic” or “experimental” is
discriminatory and out of touch with current medical thinking. The AMA and WPATH
have specifically rejected these arguments, and courts have affirmed their conclusion. In
a case brought by Gay and Lesbian Advocates and Defenders (GLAD),O’Donnabhain v.
Commissioner, for instance, the Internal Revenue Service lost its claim that such
treatments were cosmetic and experimental when a transgender woman deducted her
SRS procedures as a medical expense.

17. 8. Are my employer's health benefits required to pay for my
medical treatment or sex reassignment surgery?
The answer to this question depends on what the employer’s contract with the
health insurance company says. Currently over 200 of the largest U.S. employers
offer health insurance plans that cover transition related medical treatment. New
developments have addressed gender identity discrimination at the state and
federal level. At the federal level, the automatic ban on Medicare coverage for sex
reassignment surgery has been lifted.
Ans. Continued to the Next Slide…

18. The U.S. Department of Health and Human Services has stated that sex
reassignment surgery is a medically necessary and effective treatment for people
who do not identify with their biological sex, and thus Medicare will not
automatically deny coverage. Coverage will be determined on a case-by-case basis.

19. “Gender Dysphoria” is a medical diagnosis
recognized by the Diagnostic and Statistical Manual
of Mental Disorders (DSM), which is the American
Psychiatric Association’s (APA) encyclopedia of
official diagnoses, as "The distress that may
accompany the incongruence between one's
experienced or expressed gender and one's
assigned gender." The World Health Organization’s
International Classification of Diseases (ICD)
recognizes that Gender Dysphoria (formerly called
Gender Identity Disorder, or GID) is “characterized
by a persistent and intense distress about assigned
sex, together with a desire to be, or insistence that
one is, of the other sex.”
9. What exactly is Gender Dysphoria?

20. 10. Does every transgender person have Gender Dysphoria?
No they do not, because not every transgender person experiences the distress
associated with Gender Dysphoria or requires medical transition.

21. 11. What is the treatment for Gender Dysphoria?
The treatment for Gender Dysphoria involves some combination of “triadic
therapy”: hormone therapy, sex reassignment surgery and/or Real Life Experience.
Each patient must be evaluated on a case-by-case basis, with expert medical
judgment required for both reaching a diagnosis and determining a course of
treatment.
These treatment protocols are outlined in the Standards of Care published by the
World Professional Association for Transgender Health (WPATH), which keeps the
public up to date on the “professional consensus about the psychiatric,
psychological, medical, and surgical management of Gender Dysphoria.”

22. 12. What if I'm being harassed because of my gender
identity?
Harassment is a form of discrimination which can also rise to the level of a hate
crime. It can include inappropriate comments, jokes, and threats. Some states have
transgender-inclusive hate crime laws. These laws also prohibit sexual harassment,
which is a form of discrimination that occurs when a boss, supervisor, or co-worker
subjects you to hostile, offensive or intimidating behavior because of your sex that
is so severe or pervasive that it interferes with your ability to perform your job.
Ans. Continued to the Next Slide…

23. The U.S. Supreme Court has also allowed sexual harassment claims under federal
law where the person responsible for the harassment and the victim of harassment
are of the same sex, as long as the harassment was “because of sex.”

24. 13. Are jokes or slurs about transgender employees
against the law?
It depends. Jokes or slurs about your gender identity
may be considered a form of sexual harassment, which
courts have determined is a form of illegal
discrimination. However, federal law does not prohibit
simple teasing, offhand comments, or isolated incidents
that are not extremely serious. Generally the conduct
must be sufficiently frequent or severe to create a
hostile work environment or result in a "tangible
employment action," such as hiring, firing, promotion, or
demotion. The EEOC notes that “harassment can include
offensive remarks about a person’s sex.” For more
information about hostile work environments, see our
page on sexual harassment.

25. 14. What if my employer does not know my gender identity?
You may choose to keep your gender identity a private matter; nothing requires
you to disclose this information to your employer if you do not choose to do so.
However, if you are experiencing discrimination or harassment at work, you may
wish to speak with your company's human resources department and/or a member
of management to see whether your employer can work with you to solve the
problems you are facing.

26. 15. I am about to start my transition. What do I need to
tell my employer?
Some other workplace issues that may need to be quickly resolved once you have started
your transition include:
a new company identification badge with your new name and photo;
a new name tag on door/desk/cubicle;
updating any organization charts, mailing lists, and other references to your old
name;
paperwork for the HR employee database, effective the day of transition, to change
the following: new name; gender marker (“M” or “F”); computer handles and
account IDs, if the old ID is inappropriate; e-mail address, if it contains the old name
restroom use and communicating the decision to other employees;
new introductions.

27. 16: What name and gender pronouns do you use if a
transgender person’s ID still has their pre-transition name and
gender?
It’s important for transgender people to have their preferred names and pronouns
respected regardless of what it says on an ID card. Trans employees are also entitled to
full privacy in such matters; employers should refrain not just from treating an employee
differently if his or her gender transition comes to light but also from sharing that
information. It’s also within every human resources department’s responsibilities,
however, to counsel members of the workforce and discusses an approach with which
the employee is comfortable.

28. 17: Are employers allowed to institute dress codes according to
gender?
Like non-transgender people, transgender people want to go to work in clothes that
conform to their gender identity and wear the clothes that they feel the most
comfortable wearing. The following guidelines were created by the City and County of
San Francisco, California, to ensure dress codes are non-discriminatory:
Employers have the right to implement employee dress codes including those
according to gender.
Transgender employees have the right to comply with sex-specific dress codes
according to their gender identity.

29. 18: How do you know which bathroom a TGNC person should
use?
A TGNC person should use the bathroom that corresponds
to his or her gender identity. But employers and coworkers
don’t always welcome that idea. Trans people often endure
extreme discomfort or inconvenience just to keep a job—
traveling some distance to use a gas station restroom, for
instance, or simply “holding it.”
The difficulties some TGNC people have accessing
bathrooms in the workplace is a key rights violation
because it’s pretty much impossible to work without having
a bathroom to use. The U.S. Department of Labor’s
Occupational Safety and Health Administration (OSHA)
prohibits employers from placing “unreasonable
restrictions” on employees’ access to restrooms.

30. 19. Who enforces the law?
Federal anti-discrimination laws are enforced by the EEOC. Protections under state
and local laws are generally enforced by state or local anti-discrimination agencies,
which may be called a “fair employment,” “civil rights,” or “human rights”
commission or agency.
20. How can I file a complaint?
To file a complaint under state and local statutes, please contact your state or local
anti-discrimination agency or an attorney in your state.
21. What remedies are available to me?
For remedies available under state and local statutes, please contact your state or
local anti-discrimination agency or an attorney in your state.

31. 22. Victory! Equal protection for trans employees
On December 6, 2011, a longstanding workplace discrimination case ended in a
groundbreaking ruling that firing someone based on gender-nonconformity violates
the Constitution’s prohibition on sex discrimination.
The Eleventh Circuit Court of Appeals upheld a lower-court ruling in the Lambda
Legal case, finding that the Georgia General Assembly had discriminated against
Vandy Beth Glenn, a transgender woman who was fired from her job as legislative
editor after telling her supervisor that she planned to transition from male to
female.