Transgender Employees: A Respectful and Legal Workplace Approach

Dear Rita: I manage a small team of employees in a close-knit office. Recently one of my employees told me in private that "he" is becoming a "she." I'm not sure how to deal with this. Do I call the employee "him" or "her"? I think when the other employees see him coming to work in women's clothing, they're going to freak out. What if he wants to use the women's restroom? I'm in totally over my head here!

-- Sincerely, Trying to Do the Right Thing

Dear Trying: This situation may be uncommon but it doesn't have to be difficult!

Let's begin by getting on the same page with some of the terminology. People whose gender identity is different from the gender they were assigned at birth are generally described as transgender. This term is also used to describe people whose gender expression is different than their birth-assigned gender.

For example, an individual might express their gender through the way they dress, their mannerisms, even their voice. Transition refers to the process of changing gender from the gender assigned at birth to the gender the individual identifies as. There is no set amount of time for the transition, nor is there a one-size-fits-all approach.

The employee has approached you because she needs your support with how her transition is going to be handled at work. In a small office like yours, the employee may prefer to tell her colleagues individually. Let employee decide how much information she is comfortable sharing. Many transgender employees report that they have been asked intrusive questions by their colleagues like, "Are you going to have surgery?" An employee who is going through gender transition doesn't have any less of an expectation that their medical information should be treated confidentially.

It's okay to ask the employee what gender pronoun they prefer. Most people in a male-to-female (MTF) transition prefer to be referred to with female pronouns. If the employee has a male-gender name, she may also request to be referred to by a new female-gender name. I encourage you to offer to order new business cards, change the name on her email account, and undertake any of the other practicalities that involve a name change in your nonprofit. Keep in mind that the standards for a legal name change vary from state to state, so the employee's preferred name may be different from her legal name. Her legal name should be used on certain official documents such as tax forms.

The most common question I receive from employers about a gender transition is about the restroom. Some employers have told me they are worried their female employees will object to sharing a restroom with a colleague they still think of as male. These concerns are often labeled as a "safety" issue. Unfortunately, this comes from the perception that people who are transgender are sexual deviants, and somehow dangerous. In truth, there is nothing about transitioning from one gender to another that would inherently create a safety risk for other employees.

The employee feels female, identifies as female, and wants to be treated as female. When you think about it at a practical level, that is actually incredibly easy to do. You just treat the employee as you would any other female employee. And yes, that includes using the women's restroom!

Legal protections

Currently, no federal law specifically includes "transgender employee" as a protected class. Proposed legislation -- the Employment Non-Discrimination Act -- would prohibit employers of 15 or more staff from making employment decisions on the basis of sexual orientation or gender identity. This legislation was passed by the Senate on November 7, 2013, and President Obama has said he will sign it into law if it is also passed by the House. Sixteen states (see end of article for list) presently have laws that expressly prohibit discrimination on the basis of gender identity. If you are in a state where there has not been specific legislation to protect transgender employees, you should be aware that the Equal Employment Opportunity Commission ruled in 2012 that they interpret federal legal protections against sex discrimination to include discrimination on the basis of gender identity.

It is clear that the legal trend is towards protections for transgender employees, but I am not trying to scare you with the threat of a lawsuit. Many of the largest employers in the country have voluntarily adopted policies to protect transgender employees because they want to retain their employees and they believe in the value of a diverse and tolerant workplace. I have included some links to some resources that will help you understand transgender issues and support a smooth transition in your workplace.

I hope that your nonprofit will follow the lead of these companies and work with your employee to make her feel welcome at work, regardless of her gender identity. And although this brief article has only been able to address the question posed, there are many other issues related to transgender and intersexual matters; I'm confident you'll take the same caring approach evereywhere.

More resources

The Human Rights Campaign produces the booklet, Transgender Americans: A Handbook for Understanding, and has helpful resources for gender transition at work from an employer's perspective. Lambda Legal has Model Restroom Access Policies.

To find out more about the laws in your state, check out the guide published by the National Center for Lesbian Rights. Please note that this was last updated in 2010.

*As of February 2014, the following states protect employees of private companies from gender identity discrimination: California, Colorado, Connecticut, Delaware, District of Columbia, Hawaii, Illinois, Iowa, Maine, Massachusetts, Minnesota, Nevada, New Jersey, New Mexico, Oregon, Rhode Island, Vermont and Washington. Some cities and counties also prohibit discrimination in employment on the basis of gender identity, even if their state does not have such a law.

* The cover of "Is He A Girl?" is from a third-grade reader.

Siobhan Kelley is an HR attorney at the Nonprofits Insurance Alliance Group (NIA Group), a sponsor of both American Nonprofits and Blue Avocado. The NIA Group provides her legal services (and those of Ask Rita's other writers Ellen Adridge And Pamela Fyfe) to member-insured nonprofits.

Comments (8)

  • Anonymous

    of course, you could always simply make the restrooms gender neutral.

    Apr 23, 2014
  • Anonymous

    How do you know this transgender person is genuine? What is stopping somebody using such "sexual identity" or "sexual expression" from using the restrooms or changing rooms of the (previously claimed) opposite sex, and just have a good time?!

    Apr 26, 2014
  • Anonymous

    If the above inane, ignorant comment was meant for the April Fool's issue, you're 26 days late. Karen Aitchison

    Apr 29, 2014
  • Anonymous

    Only 4 comments, 3 addressing this Annonymous Jerk. Is the issue so uncomfortable that most readers didn't want to even think about it...? A follow- up needs to be done after the writer of the article contacts the National Center for Lesbian Rights and the Los Angeles Gay and Lesbian Center....both organizations have a wealth of information about how to learn about people different than you. Karen Aitchison

    May 02, 2014
  • Anonymous

    people have been and still are being harassed, killed, attacked, fired and ostracized from friends and family for coming out as transgendered, or even being perceived to be more masculine or feminine than their biological gender. That's not "a good time" it's terrifying!

    Apr 29, 2014
  • Transgender is a something new to a lot of people. My experience is that most people who are comfortable with people being gay will find it easy to think openly about transgendered people. BUT they might not have thought about it at all yet. There are a lot of people in between the "understands it all" and between those who harass or ostracize.

    May 02, 2014
  • Hi! This is my first visit to your blog! We are a group of volunteers and starting a new project in a community in the same niche. Your blog provided us useful information to work on. You have done a outstanding job!

    May 23, 2014
  • Anonymous

    Thank you for this very informative article. Organizations realize that it's important to offer diversity trainining programs in order to help create unity, raise productivity and improve the bottom line. To achieve these results, organizations need to develop a more diversity-friendly culture.

    Jun 29, 2014

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