As transgender employees become more comfortable living openly as their authentic selves in the workplace, employers should be prepared to work with transitioning employees. Consider putting a plan in place that fosters an inclusive work environment and guards against discrimination based on gender identity and expression. This plan should include communicating with transitioning employees, educating your workforce, and creating clear policies addressing the rights and needs of transgender and gender nonconforming employees.
You should create an accepting work environment that invites employees to speak openly with HR or management. Inviting open communication directly with company leadership allows you to address concerns before they escalate.
When a transitioning employee comes to you, work with them on their anticipated transition timeline, including whether and how they want their coworkers to learn about the transition. Encourage self-identification of pronouns and acknowledge and allow name and/or pronoun changes within your HR systems, regardless of whether the employee has legally changed their name. Assure the transitioning employee that they may dress in a manner that corresponds with their gender expression or identity, and they are permitted to use bathrooms and locker rooms that align with their gender identity.
Educating your workforce is a process that includes the rollout of gender transition policies and individualized communications about the use of the transitioning employee’s new name and pronouns (with approval from the transitioning employee).
Inform employees that repeatedly using the wrong name or pronoun to refer to a transgender employee is prohibited because it can contribute to an unlawful hostile work environment. Sponsor diversity and inclusion presentations or forums that encourage frank and respectful discussion.
Revamp or Create New Policies
As you update or draft new policies, remember that the personal opinions of employees do not override a transitioning employee’s right to choose and express their gender identity or their right to be free from discrimination, harassment, and retaliation for doing so.
- Dress codes should be gender neutral and contain no stereotypical gender standards.
- Bathroom and locker room policies should permit transgender employees to use the facilities that align with their gender identity. Where possible, unisex single-stall restrooms and alternative changing areas should be available to all employees.
- Transgender policies should include definitions to assist employees in understanding the policies, and guidelines related to name and pronoun changes, transitioning on the job, restroom accessibility, and the availability of health insurance coverage for transition-related care, if any.
You should be aware of what constitutes a “reasonable accommodation” for transgender individuals, particularly as this area of law develops. Workplace use of pronouns reflecting gender identity and use of facilities based on one’s gender identity are reasonable accommodations. Other accommodations may be necessary as well.
One federal appeals court recently ruled that “gender dysphoria” qualifies as a disability under the Americans with Disabilities Act (ADA). According to the American Psychiatric Association, gender dysphoria is the “clinically significant distress” (depression, intense anxiety, and suicidal ideation) that results from the incongruence between assigned sex at birth and gender identity.
Reasonable accommodations for employees with gender dysphoria may include leave of absence related to treatment and time off for medical appointments. Ask your managers to refer transgender employees to human resources if they request an accommodation. They can engage in the interactive process to determine whether the employee has a qualified disability and, if so, identify any reasonable accommodations.
Laurie Rogers is an employment attorney with Holland & Hart LLP in Boulder. You can reach her at firstname.lastname@example.org.