Transgender individuals have good reason to be concerned about expressing their gender identity in the workplace. According to recent studies, at least one in five transgender individuals reports experiencing employment discrimination. A review of six studies conducted between 1996 and 2006 showed the following concerning reports of mistreatment in the workplace based on gender identity:

• 13%-56% of transgender individuals had been fired;
• 13%-47% had been denied employment;
• 22%-31% had been harassed, either verbally or physically, in the workplace; and
• 19% had been denied a promotion due to their transgender status.

Most employees choose whether, when, and to whom they disclose certain personal information at work. However, transgender individuals who decide to transition from one gender to another while remaining with their current employer do not have the same luxury. This largely is due to the inherently public nature of the transition. Indeed, an employee who intends to undergo a gender transition generally is required to live full-time in their new gender role for at least a year before becoming eligible to undergo sex reassignment and reconstruction surgery (if they so choose to have surgery, which many do not). During this time frame, transgender individuals often seek a variety of medical treatments, including hormone therapy, as well as change their names, modify their identity documents, and other procedures. As a result, employers and co-workers necessarily, but often reluctantly, become involved in a transitioning employee’s gender transition. While a gender transition is an inherently private process, it necessarily becomes known to co-workers at some point by the very nature of the “transition.”

What does that mean for an employer who receives notice that an employee intends to transition from one gender to another over the course of several weeks or months? More importantly, how does an employer reconcile this very public transition with potential state and federal laws protecting confidential medical information, which requires employers to maintain private information about an employee, and protect against potential common law claims like invasion of privacy?  This is made more difficult by the very nature of the public transition for transgender employees. For all practical purposes, it is somewhat similar to when an employee discloses to limited individuals that she is pregnant.  Employers must not and should not disclose this fact (that is private until the pregnant employee begins “to show”) to others who do not need to know or confirm this information to colleagues. And while such information may inherently or eventually become public due to an employee’s appearance, it necessarily is up to the employee to decide when and to whom to disclose such information.  

Such is the case with an employee who announces an intention to change gender. An employee’s transgender status, where the employee is in the process of transitioning, and especially the employee’s medical condition and/or plans for future medical procedures, must be treated as private and confidential. The decision of with whom and when a transgender employee shares such information should be left to the employee’s discretion. Medical information also may be received by employers in a variety of ways and circumstances. Depending on the nature of that information and how it is received, the information may be protected under federal laws, such as the Health Insurance Portability and Accountability Act (HIPAA), Genetic Information Discrimination Act (GINA), or the Americans with Disabilities Act (ADA) (which does excludes transgender status from the definition of disability, but protects most medical information of current employees). Regardless, out of sheer courtesy to the employee, the information should not be disseminated or the discussion of office chatter.

In addition to privacy concerns, employers should be aware that more and more cases are expanding the boundaries of discrimination under Title VII, and most particularly the definition of “sex.” In September 2008, the federal court of the District of Columbia ruled that the Library of Congress discriminated against Diane Schroer on the basis of “sex.” Schroer v. Billington, 577 F. Supp. 2nd 293 (D.D.C. 2008). While dressed in traditionally masculine clothing and interviewing under her previous male name, Schroer was offered a job as a Terrorism Research Analyst with the Congressional Research Service, a division of the Library of Congress. After the job offer, but before starting and before undergoing sex reassignment surgery, Schroer informed the Library of Congress that she was under a doctor’s care for gender dysphoria. Schroer informed her future employer that, consistent with her treatment, she was about to change her name, begin dressing in traditionally feminine attire, and presenting herself full-time as a woman. The job offer was rescinded one day after Schroer disclosed her plans to transition. This groundbreaking decision was the first time a court has ruled that discriminating against someone for changing gender is sex discrimination under Title VII. While case law usually develops a bit slower, the Employment Non-Discrimination Act (ENDA) still is on the horizon. With a new administration and Congress, most predict that the version of ENDA likely to be introduced will add to Title VII express protections for gender identity or expression (in addition to sexual orientation). 

So, how does an employer manage to maintain this balance while also fostering a non-discriminatory work environment where all employees are treated with trust and respect? Some helpful guidelines include:

• Amend your Equal Employment Opportunity policy to prohibit discrimination based on gender identity or expression. (Several states, most recently New Hampshire and Washington, have passed bills protecting individuals on the basis of gender identity or expression. See also Jurisdictions with Explicitly Trans-Inclusive Discrimination Laws.)
• Be prepared to address questions and requests from employees who notify you of their intent to transition to a different gender.
• Write and implement a detailed policy and procedures suited to your own workplace environment to aid management, and the transitioning employee when a transgender employee decides to transition on the job.
• Do not make decisions about how to respond to certain requests from a transitioning individual based on where an employee is in the transition process.
• Keep in mind, at all times, that transitioning to a new gender is much more intense and intimate than simply ”changing one’s name” and dressing differently; this process truly is life-altering.

This entry was authored by Denise Visconti, a shareholder in Littler's San Diego office.