Diversity Insight

Defining Gender: Employers May See Fallout from Possible Federal Policy Change

Reports of a leaked memo detailing Trump administration plans to adopt a narrow definition of sex—a change that could erase discrimination protections for transgender people—raises questions about the impact of a new federal policy on the workplace.

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The issue came to light in October in a New York Times (Times) report explaining that the administration is considering defining gender as a biological, immutable condition determined by genitalia at birth.

The Times report explains that the federal Department of Health and Human Services is  looking at the definition of sex under Title IX, a federal law banning gender discrimination in education programs that receive financial assistance from the government. But depending on what eventually happens, the reach may go beyond Title IX and educational institutions. It also could affect how employers treat transgender employees.

Effect on Employers

Marylou Fabbo, an attorney with Skoler, Abbott & Presser, P.C., in Springfield, Massachusetts, points out that decisions by the Obama administration relaxed the concept of gender and recognized that someone’s personal sense of gender—gender identity—may be different from the person’s biological sex.

Policies implemented during the Obama administration meant that “transgender individuals were afforded rights that became the subject of disputes over education, dormitories, and in other venues where gender was not seen as biological sex,” Fabbo says. A more narrow definition of gender under the Trump administration would change those protections.

“In summary, under the Trump administration’s definition, gender would be the same as biological sex,” Fabbo says. “Depending on the ultimate breadth of the policy, federal recognition of those whose gender on their birth certificates differs from their personal sense of gender may come to an end.”

Such a change could result in more disputes in the workplace about matters such as what bathroom transgender employees are allowed to use and whether employees can take time off for sex-reassignment surgery, Fabbo says.

The Times report says plans call for the new definition of sex to be presented to the Justice Department before the end of the year. If the Justice Department finds the change legal, the new definition can be enforced for Title IX as well as by various government agencies.

“While the Department of Health and Human Services is working on the draft of the proposed change in policy as it applies to Title IX, other agencies, including the Departments of Education, Justice, and Labor may adopt it as well,” Fabbo says. “Employers should keep their eyes open for changes that may impact the workplace. If the Trump administration’s policy is adopted, discrimination against trans people in any setting, including the workplace, housing, schools, and health care, may be permissible.”

State Laws

A change at the federal level doesn’t mean a change in state laws. Fabbo points out that many states have laws designed to protect transgender individuals. “States’ recognition of transgender rights continues to increase, albeit not without challenges,” she says. Her own state, Massachusetts, has had a law prohibiting discrimination in places of employment for 16 years, and in 2016, it enacted a transgender rights law ensuring that individuals could use public restrooms and locker rooms according to their gender identity.

Even if federal policy changes, “states will still have the option to protect transgender people by implementing or continuing to implement laws that prohibit discrimination based on gender identity in the workplace and places of public accommodation, among others,” she says.

Fabbo’s own state, Massachusetts, has had a law prohibiting discrimination in places of employment for 16 years, and in 2016, it enacted a transgender rights law ensuring that individuals could use public restrooms and locker rooms according to their gender identity. An effort to repeal the 2016 measure was on the November 6 ballot, but voters voted to keep the law by a 2-1 ratio.

Looking Ahead

Whatever happens with the federal policy, employers will stay on the front lines of the issue. “Some common complaints against transgender employees using the restroom of choice are that it puts women and children at risk and forces coworkers to share bathrooms with employees that may be of a different biological sex,” Fabbo says.

“Should the policy of interpreting gender identity and sex as one-and-the-same ultimately apply in an employment setting, employers may face a rise in complaints from employees who disagree with transgender rights in the workplace,” Fabbo says. “Businesses that have taken steps to ensure transgender rights in the workplace may be forced to reconsider their stance on transgender recognition.”