This article originally appeared in the June 2015 issue of Valley Lawyer Magazine by the San Fernando Valley Bar Association. It is republished here with permission.
Gender transition and transgender identity has taken center stage in the media recently. However, out of the spotlight, the rights of transgender persons may be unclear to many. Transgender persons struggle with difficult issues, particularly in the workplace. In recent years, there have been increasing efforts to broaden federal and state protections for transgender persons in the workplace, but many employers may be unaware of these protections and rights. As transgender rights awareness continues to gain momentum and protections broaden, employers with even one employee need to be prepared to deal with pertinent issues such as gender identity, gender stereotyping, and gender transitioning.
Terminology: Getting it Right
In keeping with both political correctness as well as raising awareness in the workplace, mindfulness of terminology is important. To start, the term “transgender” is defined as “a person who identifies with or expresses a gender identity that differs from the one which corresponds to the person's sex at birth.” The term arose in the 1970’s and has become an umbrella term for people whose gender identity and/or gender expression differs from what is stereotypically associated with their birth-assigned sex.
The term “transsexual” is often confused with the term transgender. Unlike transgender, transsexual is not an umbrella term. Some people who have permanently changed or seek to change their bodies through medical interventions prefer the term transsexual, but many transgender people do not identify as transsexual and prefer to be referred to as transgender.
There are multiple terms that are key when discussing transgender identity. Terms such as sex, gender identity, gender expression, and sexual orientation are particularly important in understanding transgender identity.
The term “sex” refers to the classification of male or female. At birth, a sex is assigned to each person (girl or boy), based on the appearance of external anatomy. However, a person's sex is not just external anatomy, but rather a multitude of bodily characteristics including chromosomes, hormones, internal and external reproductive organs, and secondary sex characteristics.
Distinct from sex, “gender identity” is not a visible identity, but an individual’s internal sense of being male or female. For transgender people, internal gender identity does not match the sex assigned at birth (girl or boy). For some, their gender identity does not neatly conform within either sex.
In contrast to gender identity, “gender expression” is a person’s outward manifestation of gender. Gender identity is expressed through a person’s name, pronouns, clothing, haircut, behavior, voice, or body characteristics. Transgender people typically seek to make their gender expression align with their gender identity, rather than the sex they were assigned at birth.
“Sexual orientation” is a person’s physical, romantic, and/or emotional attraction to another person. Transgender people may be straight, lesbian, gay, or bisexual. As an example, a person who transitions from female to male and is attracted solely to women would identify as a straight male.
“Transition" refers to the complex process of gender transition that may occur over a long period of time and is preferred over the term sex change. Transition is more than surgery or hormone therapy; it includes telling family, friends, and co-workers; using a different name and new pronouns; dressing differently; changing a person’s name and/or sex on legal documents. Transition is different and unique to each individual.
Those are just some of the basic terms that surround the transgender discussion, however there are other terms that may lend to a better understanding of transgender status such as gender dysphoria, cisgender, gender-nonconforming, etc.
The Legal Landscape Impacting Transgender Persons in the Workplace
Though it may seem obvious to some that transgender persons would be protected from employment discrimination for being transgender or transitioning, federal and state courts have not always been sympathetic to transgender persons. In fact, until recently, there were essentially very few protections for transgender persons both under federal and state law. In addition to understanding the terminology surrounding the transgender discussion, it is important to understand the federal and state legal landscape protecting and impacting transgender persons in the workplace.
Federal Protections against Employment Discrimination
Title VII of the Civil Rights Act of 1964 (Title VII) is the federal law that protects individuals against employment discrimination on the basis of protected categories, including, but not limited to sex. There is currently no express federal law protecting individuals from job discrimination based on actual or perceived sexual orientation or gender identity. Sexual orientation and gender identity are not expressly protected categories under Title VII and until 1989 Title VII did not protect transgender people.
In 1989, the United States Supreme Court held in Price Waterhouse v. Hopkins that sex discrimination under Title VII includes discrimination based on “sex stereotyping,” or a person’s perceived nonconformity with gender stereotype. Since the Price Waterhouse decision, there have been federal courts that have explicitly ruled that discrimination based on transgender status is a prohibited form of sex discrimination under Title VII and/or the Equal Protection Clause.
In 2012, the Equal Employment Opportunity Commission (EEOC) issued a landmark decision in Macy v. Holder, which held that discrimination based on transgender status constituted unlawful sex discrimination under Title VII.
In extending protection to transgender persons, the EEOC noted:
If Title VII proscribed only discrimination on the basis of biological sex, the only prohibited gender-based disparate treatment would be when an employer prefers a man over a woman or vice versa. But the statute's protections sweep far broader than that, in part because the term "gender" encompasses not only a person's biological sex but also the cultural and social aspects associated with masculinity and femininity.
Though the protection afforded transgender persons under federal law has progressed, there are continuing efforts to broaden and implement consistent protections for the lesbian, gay, bisexual and transgender (LGBT) community as a whole since currently there is no federal law that consistently protects LGBT individuals from employment discrimination.
Recent Federal Developments Broadening Transgender Protections in the Workplace
On December 15, 2014, Eric Holder issued a memorandum on behalf of the Department of Justice entitled “Treatment of Transgender Employment Discrimination Claims Under Title VII of the Civil Rights Act of 1964,” formally recognizing for the first time that Title VII “extends to claims of discrimination based on an individual’s gender identity, including transgender status.”
A few months later, on March 16, 2015, the United States Commission on Civil Rights held its first ever hearing on workplace discrimination against those in the LGBT community.
In another landmark ruling issued on April 1, 2015, the EEOC found that the Department of the Army had engaged in discrimination against a transgender employee who transitioned from male to female. The employee was not only refused access to a restroom consistent with her gender identity, her supervisors repeatedly used male pronouns and her old name in front of her co-workers and others, intentionally mocking her and “outing” her as transgender.
The EEOC held that: “[w]hile inadvertent and isolated slips of the tongue would be a different story, it was clear the use of a male name and pronouns to refer to the employee was not accidental, but rather intended to humiliate and ridicule her.”
That same month, on April 8, 2015, the Obama administration announced it had opened a gender-neutral bathroom within the White House complex, which is a symbolic step for the President to protect the rights of members of the LGBT community in the workplace.
In line with these recent developments, the EEOC recently adopted a strategic enforcement plan for Fiscal Years 2013-16, which specifically address “Emerging and Developing Issues,” such as protections for LGBT individuals under Title VII. The plan includes an LGBT work group to advise EEOC litigators, coordinate internal policies and comment on pending legislation. Another initiative has EEOC litigators filing amicus curiae briefs in lawsuits around the country.
California Protections for Transgender Individuals
California’s employment discrimination protections are found primarily in the Fair Employment and Housing Act (FEHA). The FEHA prohibits harassment and discrimination in employment based on sex, gender, gender identity, gender expression, sexual orientation and perceived sexual orientation. It also prohibits retaliation for protesting illegal discrimination related to one of these categories.
Additionally, the FEHA makes it unlawful for an employer to refuse to hire or employ a person; to discharge someone from employment; or to discriminate in compensation, in terms, conditions, or privileges of employment, because of the person’s gender identity.
Despite these broad protections under the FEHA, the law explicitly allows an employer to enforce reasonable workplace appearance, grooming, and dress standards, as long as employees are allowed to dress in a manner consistent with their gender identity or gender expression. This means that if an employer enforces dress codes, the dress code should be enforced in a way that comports with standards appropriate to align with a person’s gender identity or gender expression.
More progressive than federal law, the FEHA broadly protects not only gender identity, but also gender expression (regardless of whether an employee self-identifies as a transgender individual).
In addition to the FEHA, California Labor Code §§1101 and 1102 prohibit employers from preventing or punishing an employee’s political activity, which includes “coming out.” So if an employee is discriminated against after disclosing his or her gender identity or openly transitioning from one gender to another, an employee may bring a lawsuit under these sections arguing that such actions are protected political acts.
Other relevant California laws that may extend protection to transgender persons include California’s Disabled Persons Act, California’s Unruh Civil Rights Act, and California’s Ralph Civil Rights Act.
California employers and employment law attorneys must remain cognizant of the expanding gender-identity protections that safeguard employees’ rights to dress like, act like and use the restroom of the gender they identify with, even if they never undergo surgery to alter their appearance.
Recent California Developments Expanding Transgender Protections in the Workplace
Last year, the California Department of Fair Employment and Housing (DFEH), which is the agency that enforces the FEHA, brought a lawsuit against a California employer alleging it was sex, gender, gender identity and gender expression discrimination to require a transgender employee to use the female locker room and restroom facilities until the employee’s gender transition to male was “complete” after sex reassignment surgery. The DFEH further alleged the employer not only engaged in discrimination but the employer failed to prevent such discrimination.
The employer demurred, arguing that DFEH failed to state a cause of action because the FEHA does not prohibit employers from requiring restroom and changing room use based on gender at birth. The employer expressed concern about the discomfort of other employees in regard to the prospective employee’s use of the men’s facilities. In response, the court aptly noted:
…hypothetical assertions of emotional discomfort about sharing facilities with transgender individuals are no different than similar claims of discomfort in the presence of a minority group, which formed the basis for decades of racial segregation.
The Superior Court overruled the employer’s demurrer on all grounds. The court ruled it would be unlawful for an employer to require a transgender employee to use the bathroom and locker room of his or her birth-assigned sex. As guidance to employers, the court clarified that “individuals who claim a different gender from day to day, or who do so simply to be disruptive or to sexually harass other employees, do not meet the definition of transgender.”
As noted earlier, cases invoking issues of gender identity and expression are increasing in frequency. The EEOC interprets the sex discrimination provisions of Title VII to forbid discrimination against transgender individuals and DFEH’s expanded role as an enforcer of the FEHA, makes it more important than ever for employers and the attorneys that advise them to remain up to date on developments in regard to workplace issues pertaining to gender identity and expression.
Takeaway for Client Employers
Failing to properly deal with issues of gender identity and gender expression may lead to employee claims. Below are tips and suggested best practices to help ensure a workplace free from discrimination and harassment for all employees.
Establish Policies: Make tolerance part of the workplace culture by having strong anti-discrimination provisions in personnel policies.
Establish Standards for All: Implement reasonable workplace appearance, grooming, and dress standards that allow employees to appear or dress consistently with their gender identity and gender expression.
Communicate: Ensure employees know harassment and discrimination based on sex, gender, sexual orientation, gender identity and/or gender expression will not be tolerated.
Establish Procedures: Implement procedures for gender transitions that clearly delineate responsibilities and expectations of transitioning employees, their supervisors, colleagues and other staff.
Maintain Privacy: Ensure the privacy of gender-transitioning employees.
Implement Changes: Address employees by their preferred name and/or preferred title and pronoun by all persons in the workplace.
Update Personnel Records: If state and federal legal requirements are met, employee documents should reflect the employee’s name, title and pronoun preference.
Restrooms: Allow employees to use the restroom that corresponds with the employee’s gender identity and consider assigning a gender-neutral restroom or locker room to accommodate all employees, whether male, female or transitioning.
Problem Solve: If an employee requests help as he or she undergoes a gender transition, engage in a dialogue and ask the employee to share any concerns. Then, figure out what accommodations are best and/or possible. A change in wardrobe could occur overnight, but a transition involving hormones and surgery might take several years to complete.
Train Employees: Larger employers that are required to provide sexual harassment training and employers of all sizes should consider providing diversity training to employees.
Although employers and HR staff may be aware employees are afforded protection against discrimination based on gender identity and gender expression, transgender discrimination or harassment claims may arise from others employed in the workplace. To help prevent such claims, employers should educate their workforce not only through policies and procedures, but also through training. If this means having employees participate in diversity training, then employers should consider making that investment.
