Transgender Discrimination—When Does ‘He’ Become ‘She’

In yesterday’s Advisor, BLR® Legal Editor Jasmin Rojas, JD, took “Keeping Up With the Kardashians” star “Caitlyn” (formerly Bruce) Jenner’s recent introduction of herself as a transwoman as a starting point for a discussion of transgender discrimination. In today’s Advisor, Rojas offers practical tips for employers.

What’s in a Name?

Remember, names and pronouns are important. It may be difficult to adjust at first, to a new name reflecting a new gender, especially if you have known the employee for a while. However, intentionally misusing a transgender employee’s new name and pronouns and making references to the former gender will provide evidence of discrimination or harassment. It can also breach the employee’s privacy, create a risk of harm to the employee, and undermine the notions of tolerance and respect at your workplace.

A well-known celebrity set off a social media landmine by insisting that he will continue to call Jenner by her former name “Bruce.” In response, #CallMeCaitlyn spread like wildfire in support of Jenner. Obviously, you want to avoid this type of negativity in the workplace.

Proceed with Caution

What’s really important here is that you train your managers, supervisors, and coworkers about using the name and pronouns appropriate to the employee’s new gender. Also, you must change all of the employee’s records and identification documents to reflect the new gender. And remember that employees can legally change their names or genders on records and identification documents without obtaining a court order.

A key question HR needs to consider is when to start regarding a transitioning employee as being officially a member of his or her chosen, new gender. There is no single means of defining a person’s legal gender, and there is no official point in time when a transgender person changes from one gender to the other.

It is suggested that as a practical approach, until a transgender person begins working in his or her new gender role, the person should be considered a member of his or her original sex and should be treated the same as other members of that sex. Once the employee begins to present himself or herself in the new gender role at work, the employee should be considered and treated as a member of the new sex.

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As fascinating as the topic may be, an employee’s gender transition should be treated with the same confidentiality and sensitivity with which you treat any other employee’s significant life experiences, such as hospitalization or divorce. That being said, although many employees want to be supportive of an individual in transition, others may be offended by the idea of transition.

You want to ease the transition for the employee and the company in general. Therefore, when an employee comes forward to say he or she will undergo transition, HR should speak with the employee in depth about the transition process. HR should figure out what the employee’s plans are. Subsequently, HR should organize a meeting with the employee’s supervisors to give them information about the process and to review the company’s policy and procedures.

The employee should be informed that, while the company will protect his or her privacy and confidentiality, other employees who will have regular contact with the transitioning employee will need at least basic information about the individual’s plans, along with a reminder about company policy, expected behavior and how to deal with any concerns they might have.

While the transitioning employee can have some input into this meeting, ideally, it is recommended that the initial meeting be held without the employee. This meeting also provides senior management with the opportunity to send a strong message of support for the transitioning employee.

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