Worker rights must always be top of mind for all employers, and that same commitment should apply to the unique needs of your transgender workers. It’s essential for companies to take specific steps to ensure the protection of transgender employee rights and wellbeing. Planning and reviewing your policies is in order, so you can modify them as needed. What follows is a summary of the laws and best practices you need to know to ensure a respectful, legally compliant, and trans-inclusive workplace.
Understanding the legal definitions of gender
As you begin your work, it’s important that both you and your team understand the language and term definitions needed to have respectful conversations about gender. According to the National Center for Transgender Equality, gender identity “is the internal knowledge of your gender—for example the knowledge that you are a man or a woman.” Gender expression “is how a person presents their gender on the outside through behavior, clothing, hairstyle, voice, or body characteristics.” Finally, “transgender is a term that can be used to describe people whose gender identity is different than the gender they were thought to be when they were born.”
Transgender employee accommodations: policy considerations
These important gender distinctions will come into play as you assess the various types of workplace accommodations needed for your transgender employees. These may be simple or complex for your organization to implement, so it’s essential that your team understands and has the necessary training to carry them out. The Society of Human Resource Managers (SHRM) identified several policy areas that may need revising to accommodate transgender workers, including:
- Change of employee name or documents
- Communication to co-workers
- Security clearances
- Restroom and dressing room use
- Dress code rules
- Medical leave and eligibility determination
- Employee conduct and training
- Client and customer communications
As with anyone on your staff, it’s essential that you engage with each employee as an individual. No two people are alike, and each transgender employee may very well be at different stages of their gender transition. This may or may not include changes to their pronouns, name, clothing, appearance, and updates to their official identification documents. Common pronouns you may encounter are “she/her,” “he/him,” and “they/them.” The latter is commonly used if your employees identify as non-binary or genderqueer, and thus, identify as neither female or male.
Circumstances may also vary greatly depending on how public your transgender employees want to be about their transgender identity. Likewise, company communication needs vary greatly depending on your culture, nature of business, and whether or not the transgender employee is in a public or client-facing role. Finally, when updating your policies, keep in mind that you must both account for your policies governing respectful hiring practices for transgender candidates, as well as policies that impact existing employees who are transitioning..
Preparing for the workplace transition
Transitioning employees are undergoing deeply personal experiences that may take years to fully complete. However, your company’s work in this regard must not begin until after the employee is ready to go public. This point is worth emphasizing: transitioning is a personal, not a company, decision. It is up to the employee to decide when and if they choose to speak publicly about their transgender identity. By planning ahead, you will have the groundwork and resources in place to properly support your transgender workers when the time comes.
To begin, you will likely want to audit your policies and list any that may need refreshing. According to SHRM, your company should re-examine:
- Anti-discrimination policies
- Dress code policies
- Benefits policies
- Diversity and inclusion policies
- Recruitment and selection policies
For each, you want to be sure to both update language to account for scenarios impacting transgender employees, and likewise extend current language to be more inclusive of transgender employees before, during, and after they transition.
Setting employee behavior standards
A clear policy, and potentially training, will be essential to ensure your employee base is fully respectful of transgender colleagues. It’s important to set a company standard your team can use as a guide to ensure a welcoming environment is maintained. This makes it easier for employees to set aside any personal biases or beliefs that may conflict with company expectations. Eliminating unwanted behaviors is crucial if you are to maintain a welcoming, safe, and productive environment free of hostility.
You can avoid negative scenarios by implementing respectful approaches to engage transgender employees. To be a good ally, it’s important understand that transgender people come from all walks of life, backgrounds, and cultures. There is no “one right way” to be transgender. Some choose to medically transition, others not. Some choose to change their identification documents, and others don’t. Each person has a unique journey, and a transgender person’s identity does not depend on meeting any arbitrary standard. As such, try to avoid giving advice or compliments based on stereotypes about how men or women should look or act.
Respecting the transitioning-worker’s privacy
Neither the company nor co-workers must agree with a transgender colleague’s identity to respect them as an individual. To start, use language a transgender person has identified for themselves, knowing it’s fine to ask which pronouns they prefer if you don’t know. However, be careful about the questions you ask. While co-workers may be curious about the transitioning process, that does not make it appropriate to ask transgender colleagues about their private, medical information. The National Center for Transgender Equality recommends asking two questions to determine whether intended questions are appropriate:
- Do I need to know this information to treat them respectfully?
- Would I be comfortable if that question was turned around and asked of me?
Let those answers guide how you proceed, always extending the same courtesy to your transgender colleagues that you would give to anyone else. Their transgender identity is a personal decision and they absolutely have the right to keep those matters private. Topics that many transgender people may be uncomfortable discussing include:
- Birth name (never call it a real name)
- Hormones or surgeries they may have had
- Romantic and/or sexual relationships
Understanding transgender employee rights
In addition to the rights all employees enjoy, transgender workers are protected under several statutes of federal, state, and local laws:
- Title VII of the U.S. Civil Rights Act: This protects individuals against employment discrimination on the basis of race, color, national origin, sex, and religion, applying to employers with 15 or more employees. The U.S. Supreme court further ruled that transgender rights are protected and included under the term “sex” in the Act’s original language.
- Affordable Care Act: Section 1557 in the ACA prohibits sex discrimination in health insurance. However, various state rulings make enforcement of some provisions unclear until pending litigation is resolved.
- Americans with Disabilities Act: While the revisions to the ADA removed transvestism, transsexualism, and gender identity disorders from the classification as disabilities, some transgender employees may suffer from other medical conditions that could qualify them for coverage under the law.
- Family and Medical Leave Act: While not all gender transitioning procedures or treatments qualify under FMLA, some may. Follow normal notification procedures and review each situation on a case-by-case basis to determine which qualify. Also note that some state FMLA laws afford broader protections to transgender employees than provided at the federal level.
State-by-state transgender protections vary
When crafting policy updates, be sure to understand the state regulations that apply to your business. These vary from state to state, and if your company does business across state lines, you must understand and comply with all requisite laws. As an example, hate crime laws vary from state to state, with many states—including Michigan, New Mexico, and Florida—having no specific inclusion for hate crimes against transgender individuals. Nevada and New Jersey have laws to ensure transgender individuals can acquire birth certificates and driver’s licenses without having to name a gender, but this does not apply to other states, such as New Hampshire. This is only a small sample, as there is wide variation between states. Close scrutiny is essential for your company to remain fully compliant.
Living an inclusive value
Beyond what is legally required of your business, it’s important to create a harmonious and respectful workplace. This begins with your company articulating what your values are, and why an inclusive environment is an embodiment of those values. If diversity and inclusion is not currently a company priority, be aware that you may be opening your company up to litigation risk. You may also be unwittingly creating an environment where hostile co-worker attitudes against transgender colleagues are allowed to fester.
To combat this, establish clear rules in your employee handbook governing respectful employee behavior and list the consequences for mistreating colleagues. Connect with training programs or secure eLearning modules that can advance and broaden tolerance and understanding for your transgender employees. Doing this can help workers model positive behaviors toward colleagues who hold different beliefs, values, or traditions than their own.
Transgender employees deserve to be treated with dignity, and it’s up to you to ensure a respectful, safe, and healthy working environment. Understand the specific accommodations your business must make for your transgender workers, then update your policies, benefits, and training accordingly. Beyond federal law, your company must comply with state and municipal- level regulations that may vary from state to state. But above all, your goal should be to create a welcoming space and corporate culture, so your transgender workers can thrive.
Learn more about supporting your transgender workers by visiting the National Center for Transgender Equality, which has extensive information to help guide your policy review and training programs.