Learn what legal requirements protect transgender, nonbinary and gender-nonconforming employees.
As society demands a more inclusive work culture, knowing how to properly treat your diverse employees is becoming a critical element to running a successful business. It is important for employers to be aware of the current human rights and equality regulations in place as the social and political climate is ever progressing, especially around human resources policies and transgender people in the workplace.
Kryss Shane, a leading LGBT+ expert at ThisIsKryss.com, said failure to comply with equality regulations can be detrimental to a business's health.
"Employers whose behaviors lead them to be accused of discrimination against LGBT+ people often end up with a public relations nightmare," Shane told business.com. "Boycotts and lawsuits can result in a significant drop in business or even lead to the closing of a business."
Although society is making small strides toward inclusion, there is still a tremendous amount of work that employers need to do to close the gap. According to the recent U.S. Transgender Survey, transgender people are still frequently a target of employment discrimination in the United States, with 1 in 6 reporting employment discrimination.
Gillian Branstetter, spokesperson for the National Center for Transgender Equality, said that transgender people are three times more likely to be unemployed than the general population, fueling the high rates of poverty and homelessness among transgender people.
The statistics for all transgender, nonbinary and gender-nonconforming employees are staggeringly similar. As the U.S. edges toward inclusion, employers should be aware of, and abide by, new or existing equality policies.
Discriminatory practices to avoid as an employer
There are many actions in the workplace that can be identified as discriminatory against transgender, nonbinary and gender-nonconforming employees. These actions range from small transgressions to major offenses and should be avoided at all costs.
"Paying someone less for the same work, firing someone, moving someone away from client-facing roles or mandating a dress code that does not align with a person's sexual orientation and/or gender identity in general or after an employee comes out to their employer are all discriminatory practices in the workplace," said Shane.
Additionally, Branstetter listed the following as inappropriate behavior in the workplace:
- Refusing to use someone's correct name and pronouns
- Outing someone as transgender against their will
- Asking invasive or inappropriate questions about a transgender person's health or anatomy
- Making rude jokes or comments about a person's transition or appearance
- Retaliating against someone who reports anti-transgender treatment
- Denying someone a promotion or job opportunity because they are transgender
Whether the listed behavior is illegal or not, it is important to be aware of what inappropriate offenses should be prohibited in your workplace.
Federal anti-discrimination laws
Under Title VII of the 1964 Civil Rights Act, employers are prohibited from discriminating based on race, color, religion, sex or national origin. However, the ambiguity of this law allows room for speculation and disagreement as to whether the same protections apply to people based on gender identity and sexual orientation.
Although there are no official federal anti-discrimination laws to protect transgender, nonbinary and gender-nonconforming employees, the Supreme Court is taking on two cases that could determine whether federal anti-discrimination laws (i.e., Title VII) should also apply to factors such as gender identity and sexual orientation in the workplace.
City and state anti-discrimination laws
Although there are no federally mandated protections for LGBT+ people yet, many local officials are making strides for equality and human rights. Because of this, there may be legal protections for you to follow based on your city or state.
"Twenty-one states and over 300 municipalities currently have laws prohibiting anti-transgender bias in the workplace," said Branstetter. "Many others have issued bulletins prohibiting discrimination among state contractors or within state employee systems."
Each state varies in its level of protection, so it is important that you learn your region-specific laws. According to Shane, these laws are not always based on the size of the city or the way the state votes as a whole, so knowing the state laws that apply is crucial to ensuring that your business is compliant.
What employers can do
It is important to understand how your employees identify themselves so you properly address them and comply with their needs. To do this, familiarize yourself with the correct definitions of terminology like "transgender."
PFLAG defines "transgender" as a term describing a person's gender identity that does not necessarily match their assigned sex at birth. It can sometimes be referred to as "trans," "female to male (FTM)," "male to female (MTF)," "assigned male at birth (AMAB)," "assigned female at birth (AFAB)," "genderqueer" or "gender-expansive."
Other common terms you should have a clear understanding of are "gender," "cisgender," "gender nonconforming," "intersex," "LGBTQ+" and "nonbinary." Although definitions can vary by state, you can find a complete definition of working terms on the PFLAG National Glossary of Terms.
Regardless of the lack of comprehensive state or federal anti-discrimination laws, employers can enhance diversity and inclusion in the workplace by making and enforcing internal policies.
"[Employers] can add 'sexual orientation and gender identity' to their own nondiscrimination policies and hold themselves accountable," said Shane.
"This can provide great opportunities to hire the best in the industry, as it does not allow for discrimination to occur the way it may in competitors' businesses, which can give your business a great advantage."
When you introduce new inclusive policies into your company handbook internally or through a PEO service, be sure to host mandatory training seminars to inform your staff of the changes. If you are still unsure of how to create a diverse and inclusive workplace, you can reach out to LGBT+ experts for assistance in ensuring that your business practices are LGBT+ inclusive.
"It is not a matter of if a transgender person will join your workplace, but when," said Branstetter. "Discrimination against transgender people can be prevented with HR policies reflecting the legal and moral necessity to foster an inclusive workplace."
Human resources policies for transgender employees
We talked to various HR and legal professionals for their insights into the following:
- How companies can promote transgender inclusion and support employees
- How employers should handle requests from employees to change their name
- What employers can do to update nondiscrimination policies
How to promote transgender inclusion in your workplace
"Include sexual orientation and gender identity in your nondiscrimination policies. Find health insurance policies that include hormone treatment and gender confirmation surgeries," said Ruth B. Carter (they/them), Venjuris PC and owner of Carter Law Firm PLLC. "Write your policies in a gender-neutral way. Include your pronouns on your email signatures. Have gender-neutral policies whenever possible."
"Bias training is essential to make sure that discrimination does not take place in the workplace. Human resources must develop a training program that defines and explains terms such as 'unconscious bias,' 'diversity,' 'sensitivity,' and 'inclusion.' It is critical that a training program describe what an 'unbiased,' inclusive workplace looks like, and explain the benefits to all employees, and the overall organization, of hiring a diverse workforce, advised David Reischer, an employment attorney and CEO of LegalAdvice.com. "Review the elements of the law at play, such as equal employment opportunity and affirmative action, and explain to employees the consequences to the company for not complying with the law."
"Companies can promote transgender inclusion by hiring transgender people. Firms can do this by encouraging applications from a diverse range of applicants, and promoting the company, and its job openings, in places where transgender persons might be exposed to the advertisement. However, at the end of the hiring process, employers should always hire the best person for the job based on objective job-related criteria," said Robert C. Bird, professor of business law and Eversource Energy Chair in Business Ethics Marketing at the University of Connecticut. "Just as employers should not attempt to impose hiring quotas of women and other groups, firms should not hire transgender employees specifically because of their status. This could potentially trigger a state or federal discrimination claim by excluded persons if a protected class (race, color, religion, gender, disability) is implicated."
How to support transgender employees
"Accept and support the name and pronoun a person wants to use, even if it's not their legal name. Don't use their dead name or old pronouns. If you make a mistake, correct yourself and move on," said Carter. "Make all single-user bathrooms gender neutral. [Have] low tolerance for sexist or transphobic comments and jokes – the [way you would have] low tolerance for racist statements. Ask your transgender employees what more you can do to support them. Get educated from proper sources about what it means to be transgender, the risk of violence, discrimination and the challenges of being trans in a cisgender-centric society."
Reischer added, "A good training program should identify the dangers of different stereotypes associated with age, race, culture, ethnicity, educational background, socioeconomic status, sexual orientation and gender. Make sure to point out the role that any false assumptions play in the areas of personal biases and prejudice."
"Keep [the] lines of communications open so that all employees can frankly, and without retaliation, express whatever concerns they have," said Bird. "Those concerns should be addressed according to established workplace policies and consistently across all employees. The best workplace for transgender persons is one that is supportive, concerned and engaged with its entire workforce."
How employers should handle name-change requests from transgender employees
"It should be an easy process, similar to what someone would do when changing their name after getting married," said Carter.
"An employer should elicit from the transgender employee their preference on communicating the name change to the staff at large. If [the employee] would like a public announcement, then that may be the most suitable option. Alternatively, if the employee prefers to privately announce the name change, that is the prerogative of the transgender employee. The important thing is to respect the decision of the employee so their dignity is preserved by being allowed to make the decision on such a personal matter," said Reischer.
"Having a preferred name policy is something that every organization should have. These policies aren't just of benefit to transgender and nonbinary folks but also to anyone who uses a variation of their first name, a nickname or any name other than their legal name. These policies should outline when the use of a preferred name is acceptable, such as on business cards or in email addresses, and when, for legal purposes, they cannot be used, such as on payroll, tax, and legal documents, " said Jessi Jaymes Purdy, an LGBTQ+ rights activist and CEO of FIC Human Resource Partners LLC.
"Employers should treat this like any other request, and follow relevant state, federal and local regulations. Transgender employees should not be punished or sanctioned for making such a request," added Bird.
Dress codes, documentation, etc.
Ruth B. Carter suggested having one dress code for all employees. "Everyone's allowed to wear a skirt, if they're so inclined, and if wearing one isn't a safety issue; [the] same rules for hair and makeup [should apply] for all people."
In addition, Carter said that for business owners and staff, having transgender, nonbinary and gender-nonconforming employees shouldn't alter current workplace practices and policies; however, everyone in the office should know that discrimination of any type won't be tolerated, and employees who report discrimination will be supported.
"There is no federal law that specifically designates a transgender person as a member of a protected class, or specifically requiring equal treatment for transgender people," said Reischer. "Nevertheless, an employer would be wise to develop a policy of nondiscrimination that puts clear policies in place in an employee handbook as regards [to] facilities, dress code, etc. ... The explicit policy of an organization that is written in an employee handbook will go a long way to mitigating any confusion of the employees on these important issues."
"When I'm working with clients on updating existing dress codes or personal appearance policies, I recommend adding language that acknowledges that the way a person dresses and presents themselves is an essential aspect of their identity, and that the organization will not deny an employee the ability to dress in a way that is consistent with their gender identity. I also recommend against having a sex-segregated policy," said Jaymes Purdy.
"Firms should treat transgender persons like any other employee, and allow them to receive the full privileges and benefits of working at that organization," said Bird. "Such employees should be made to feel as welcome as any other employee in the enterprise. Even though legal protection for transgender persons remains unclear, firms should get ahead of the law and accord transgender persons the same respect as they would any individual. Do not discriminate against someone because of their transgender status."
Skye Schooley contributed to the reporting and writing in this article. Some source interviews were conducted for a previous version of this article.