Discrimination Against Transgender Employees and Applicants

Are transgender people protected from workplace discrimination? Unfortunately, the answer may depend on what state or city you work in. Currently, about a third of the states, the District of Columbia, and several cities and counties prohibit discrimination based on gender identity and/or transgender status. In other states, some courts have found that transgender discrimination is a form of illegal sex discrimination under federal law; the federal Equal Employment Opportunity Commission takes this position as well. However, this issue hasn’t been definitively decided yet, and no federal law explicitly protects transgender people from discrimination at work.

What Is Transgender Discrimination?

A transgender person is someone whose gender identity or expression does not conform to the usual presentation of the gender to which they were assigned at birth. The term may be used to describe someone who has had gender reassignment surgery, but also someone who dresses in an androgynous style, or otherwise defies the stereotypes or social expectations of his or her assigned or anatomical gender.

Laws forbidding transgender discrimination prohibit employers from treating employees and applicants differently because they are transgender. For example, employers may not:

  • refuse to hire you because you are transgender (for example, because your name and gender don’t conform to the name and gender on your Social Security paperwork, or because your previous employers whom you use as a reference know you by a different name and gender)
  • fire, discipline, or refuse to promote you because you transition at work or are transgender
  • treat you differently, change your work assignments, or refuse to put you in positions requiring customer contact based on coworker or customer bias
  • harass or belittle you at work because of your gender identity (by, for example, making fun of your gender presentation or intentionally and repeatedly using incorrect pronouns to refer to you), or
  • deny you access to safe, gender-appropriate facilities, such as bathrooms and changing areas.

Many advocacy groups specialize in transgender rights. You can find great online resources at the websites of the  Transgender Law Center,  GLAAD’s Transgender Media and Education Program, and the  National Center for Transgender Equality.

Legal Protections for Transgender Employees

In the states, cities, and counties that prohibit transgender discrimination, you enjoy the protections outlined above. But, state and local laws may differ in the particulars. For example, some states explicitly address the issue of bathrooms, providing transgender people with the right to use the restroom consistent with their gender identities. Other states don’t include this specific protection, leaving it up to courts to decide whether the law requires it. A local attorney specializing in employment law or an LGBT advocacy group can explain what your state or local law requires and prohibits.

If you work in a state or local area that does not prohibit transgender discrimination or discrimination on the basis of gender identity, you may still be protected. It depends on how courts where you work have interpreted the sex discrimination ban in Title VII (the primary federal law that prohibits workplace discrimination) and similar state and local laws. The Equal Employment Opportunity Commission (EEOC), the federal agency that interprets and enforces Title VII, has said that discrimination against an employee because that employee transitions or that employee’s gender presentation does not conform to gender-based stereotypes is sex discrimination. A few federal courts have reached the same conclusion. However, courts in many areas have yet to rule on the issue. This means your legal protections at work aren’t necessarily guaranteed under federal law, at least until the Supreme Court weighs in on the issue or Congress passes a law that expressly includes gender identity as a protected category.

What to Do If You Are Facing Discrimination

If you believe you are being discriminated against because you are transgender, you should talk to an experienced employment lawyer. The legal landscape surrounding gender identity and transgender discrimination is rapidly changing, as more state and local legislatures pass laws and more courts decide cases involving transgender employees. A lawyer familiar with these issues can analyze your situation and explain your options. The lawyer may suggest, for example, that you file a charge of discrimination with the EEOC or a state fair employment practices agency. If your claims don’t have much legal footing, the lawyer may be able to help you strategize about how to improve your situation at work (or negotiate a severance package and move on). Either way, knowledge is power: By learning your rights, you will have a stronger bargaining position moving forward.

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