This week, Elliot Page shared on social media that he is transgender and identifies as nonbinary. Elliot, who was formerly known publicly as Ellen Page, is known for such popular films as Juno (for which he received an Oscar nomination) and Inception and can currently be seen in Netflix’s Umbrella Academy. Elliot’s announcement further shed light on the ongoing discrimination toward transgender and nonbinary people and advocated for further change to curb such harassment and abuse.
In order to appreciate the significance of Elliot’s statement, it is important to understand and differentiate between the relevant terms at issue. According to the American Psychological Association (APA), the term “transgender” is an umbrella term used for persons whose gender identity, gender expression, or behavior does not conform to that typically associated with the sex to which they were assigned at birth. The APA further states that gender identity refers to a person’s internal sense of being male, female, or something else, while gender expression typically refers to the way a person communicates gender identity to others.
Gender Identity Does Not Equal Sexual Orientation
These terms are wholly separate and distinct from sexual orientation, which refers to one’s emotional, romantic, or physical attraction to another person. As a result, being transgender does not imply any specific orientation, and transgender people may identify as straight, gay, lesbian, bisexual, or any other sexual orientation. Furthermore, Elliot self-identifies as nonbinary, which, as noted by GLAAD, “is a term used by some people who experience their gender identity and/or gender expression as falling outside the categories of man and woman…. The term is not a synonym for transgender or transsexual and should only be used if someone self-identifies as non-binary.”
There are other celebrities who came out as transgender before Elliot, with the most well-known arguably being Caitlyn Jenner and Laverne Cox (and my apologies to the many others I simply don’t have the space to name). However, Elliot’s announcement comes at a significant time when the approach to transgender rights is shifting.
The Impact of the Recent Ruling on Title VII
Just this past June, the U.S. Supreme Court in Bostock v. Clayton County held that sexual orientation, as well as gender identity or expression, was included in the definition of “sex” under Title VII of the Civil Rights Act of 1964. Although protections for transgender employees exist at some state and local levels, and are continuing to progress, the Bostock decision was a landmark ruling that deemed discrimination based on gender identity or expression, or transgender status, a violation of federal law.
Elliot’s announcement is sure to place a brighter light on transgender rights and encourage other individuals to have the courage to come forward. Employers need to not only understand how to deal with these issues in a compassionate and appropriate manner but, of course, also adopt policies and procedures to ensure they are compliant with applicable law and avoid any pitfalls that could result in unnecessary liability.
Consequently, employers should review their existing nondiscrimination policies to ensure they explicitly prohibit discrimination and harassment based on gender identity or expression or transgender status (in addition to sexual orientation). Employers should be aware that certain treatments, procedures, or conditions related to transgender status could be protected under the Americans with Disabilities Act or Family and Medical Leave Act and thus be reasonable accommodations or warrant a leave of absence.
Employers should institute training (or supplement existing training) to educate managers and employees on becoming more sensitive to gender identity and expression and reiterate that harassment and discrimination on any such basis are prohibited, regardless of one’s personal beliefs. This training should also include how to utilize and be mindful of the usage of appropriate pronouns consistent with transgender employees’ self-identification.
In making his announcement, Elliot shared that his pronouns are he/they, and employers should consider respectful ways to communicate confidentially with employees regarding their pronoun preference and discuss with those employees whether their preference is to communicate this to others within the workplace. Some employers have instituted a system whereby employees’ e-mail signatures include their preferred pronouns, should they wish to do so, in order to make this disclosure more seamless.
In addition, employers should review any dress code policy to avoid gender stereotypes. Depending on the industry involved, that could include requiring professional business attire irrespective of sex or gender identity/expression or permitting employees to dress in accordance with their gender expression. If the company has diversity and inclusion initiatives and/or committees (which is recommended), ensure transgender workers are included in these efforts and/or groups.
Of course, there are a host of additional initiatives or issues employers should be aware of when it comes to transgender rights, and the first step for employers is ensuring they are mindful when instituting business policies and procedures to appropriately protect those rights. In doing so, employers should seriously consider engaging a third party with experience and knowledge of transgender issues to assist in any company initiatives, as any implementation without the requisite expertise could result in inadvertent problems due to the lack of familiarity with the various complexities surrounding transgender rights.
After all, if employers understand the importance of making the appropriate changes to their internal policies and procedures and educating their workforce, then they might as well do it right.
