Gender Identity Discrimination in the Workplace

The laws on transgender discrimination in the workplace are rapidly changing. Here's what you need to know.

Gender identity refers to the gender with which a person identifies, which may not be the same as the person’s sex at birth. A transgender person is someone whose gender identity and very often gender expression (appearance, style of dress, etc.) is different than that person’s anatomical gender at birth.

Many states and localities have laws banning discrimination based on transgender status, although no federal law currently prohibits it. Transgender discrimination might also be against your employer's own policiescheck your employee handbook or contact your human resources department for more information.

What Is Transgender Discrimination?

According to the Equal Employment Opportunity Commission (EEOC), the agency that enforces federal anti-discrimination laws, illegal transgender discrimination can occur in all stages of the employment process, including hiring, job assignment and promotion, pay and benefits, and discipline and discharge.

Examples of gender identity discrimination include:

  • refusing to hire an applicant because that person is transgender
  • firing an employee because that person is planning to or has made a gender transition
  • failing to address, prevent, or discipline workplace harassment such as threats, slurs, and teasing
  • wrongfully using an improper pronoun or gender term when addressing a transgender employee
  • failing to provide proper or updated paperwork to an employee who has undergone a gender transition, which could include such things as company ID badges
  • preventing gender expression by requiring an employee to look or dress contrary to the gender with which the person identifies, and
  • denying equal access to a common restroom corresponding to an employee’s gender identity.

This list is not exhaustive. Basically, an employer who creates, promotes, or enforces any type of gender-identity based preference or policy could be liable for gender identity discrimination in a jurisdiction that recognizes such a claim.

Gender Identity Discrimination and Federal Law

Federal law does not expressly prohibit workplace discrimination based on gender identity, although about 20 state and the District of Columbia have laws banning it. There is, however, some hope for workers who believe they are being treated unfairly on the basis of gender identity.

For starters, the EEOC does recognize gender identity as a form of sex discrimination. And although federal courts are not bound by the EEOC’s legal positions, some courts (but not all) have agreed with the EEOC when it comes to discrimination against transgender people.

Supreme Court to Address the Issue

The United States Supreme Court is in the process of resolving the split among federal courts in a pending case, R.G. & G.R. Harris Funeral Homes Inc. v. EEOC. This case deals with the issue of whether transgender discrimination in the workplace is prohibited by Title VII of the Civil Rights Act, the landmark federal anti-discrimination law.

The Court will decide whether Title VII's ban on sex-based discrimination includes gender identity discrimination. A decision is expected some time in 2020.

State and Local Laws on Gender Identity Discrimination

About 20 states and the District of Columbia prohibit gender identity or gender expression discrimination in the workplace. Hundreds of towns and cities have also passed ordinances banning gender identity discrimination in public or private employment.

If you're a transgender employee who works in a jurisdiction without such a law, it’s a good idea to check your employee handbook as your employer may already have a policy in place that protects transgender workers.

For more information on model transgender employment policies and gender identity discrimination in the workplace, be sure to visit the Transgender Law Center website.

Get Legal Help

Gender identity discrimination in the workplace is a complicated and developing area of the law. Federal courts that have considered the issue are split on whether transgender people are protected by federal statutes that prohibit sex discrimination and the Supreme Court is poised to make a definitive ruling soon.

About 20 states and the District of Columbia protect transgender people from workplace discrimination and more could follow. Local laws could also come into play. Whether you are an employer unsure of what laws apply or a transgender person who has suffered discrimination in the employment process, you should contact an experienced employment attorney to help you navigate this changing legal landscape.

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