Welcoming Transgender Individuals in the Workplace

Recently, President Trump sought to ban transgender individuals from serving in the military via a series of tweets that included reference to “the tremendous medical costs and disruption that transgender in the military would entail.” So far, the ban doesn’t appear to be taking place, but it has raised concerns among transgender people everywhere.

And with good reason. Nearly half of transgender people were not hired; were fired; or were not promoted due to their gender identity, according to Out & Equal, a nonprofit organization dedicated to LGBT workplace equality.

Legal Landscape

Although there are state laws that appear to allow employers to treat transgender employees differently, the U.S. Equal Employment Opportunity (EEOC) is clear about the federal government’s ability to supersede these laws. Under the heading, “Title VII of the Civil Rights Act of 1964 and Transgender Individuals,” the EEOC website includes this statement:
“In addition to other federal laws, EEOC enforces Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on race, color, national origin, religion, and sex (including pregnancy, gender identity, and sexual orientation). Title VII applies to private and state/local government employers with 15 or more employees, as well as to federal agencies in their capacity as employers. Like all non-discrimination provisions, these protections address conduct in the workplace, not personal beliefs. Thus, these protections do not require any employee to change beliefs. Rather, they seek to ensure appropriate workplace treatment so that all employees may perform their jobs free from discrimination. Contrary state law is not a defense under Title VII. 42 U.S.C. § 2000e-7.”
If this weren’t clear enough, the EEOC also has a page at its site, “What You Should Know About EEOC and the Enforcement Protections for LGBT Workers.” Here, the EEOC reiterates its commitment and provides examples of LGBT-related claims that it views as unlawful sex discrimination:

• Failing to hire an applicant because she is a transgender woman.
• Firing an employee because he is planning or has made a gender transition.
• Denying an employee equal access to a common restroom corresponding to the employee’s gender identity.
• Harassing an employee because of a gender transition, such as by intentionally and persistently failing to use the name and gender pronoun that correspond to the gender identity with which the employee identifies, and which the employee has communicated to management and employees.

Additionally, the EEOC includes this statement:
“While Title VII of the Civil Rights Act of 1964 does not explicitly include sexual orientation or gender identity in its list of protected bases, the Commission, consistent with Supreme Court case law holding that employment actions motivated by gender stereotyping are unlawful sex discrimination and other court decisions, interprets the statute’s sex discrimination provision as prohibiting discrimination against employees on the basis of sexual orientation and gender identity.”
Translation: When you discriminate, the law is not on your side.

Transgender and Transitioning

Approximately 1.4 million U.S. adults identify as transgender, according to a study conducted by the Williams Institute, a think tank at UCLA School of Law.
As for medical costs, according to LGBTQ civil rights organization the Human Rights Campaign, many transgender individuals successfully transition without sexual reassignment surgery or other medical intervention.
For others, surgery is required. Aetna, one of the nation’s largest health insurance providers, includes a page called, “Gender Reassignment Surgery” at its website, where the company states that it considers “gender reassignment surgery medically necessary” when certain criteria, which it details, are met.

Snapshot

Approximately 1.4 million potential job candidates, some of whom may require medical treatment; others may not. It sounds a lot like a representative sample of the overall workforce, doesn’t it?

Paula Santonocito, Contributing Editor for Recruiting Daily Advisor, is a business journalist specializing in employment issues. She is the author of more than 1,000 articles on a wide range of human resource and career topics, with an emphasis on recruiting and hiring. Her articles have been featured in many global and domestic publications and information outlets, referenced in academic and legal publications as well as books, and translated into several languages.