Gender Identity Discrimination
Gender identity discrimination in the workplace occurs when an employer discriminates against an employee because of their gender identity. Discrimination can include terminating a transgender employee after the employer finds out about the employee’s gender identity or planned transition; denying a transgender employee access to workplace restroom facilities available to other employees; requiring a transgender employee to use a restroom not consistent with the employee’s gender identity or presentation; harassing a transgender employee; permitting and/or refusing to investigate claims of harassment by coworkers and supervisors; or any other negative employment action taken because of an employee’s gender identity.
Discrimination based on gender identity is not specifically prohibited under federal law at this time, but there are legislative efforts to pass federal laws to make it explicitly illegal. There is also some case law interpreting sex discrimination laws to encompass gender identity in certain circumstances. Protection from gender identity discrimination is enforced by state or local anti-discrimination agencies in 18 states. To learn more about gender identity discrimination, read below:
This page provides answers to the following questions:
14. My employer will not allow me to use the restroom appropriate for persons of my gender identity, after one of my coworkers complained. Every time I need to use the restroom, I have to leave my office and go to a public building next door. What can I do?
The phrase gender identity refers to one’s self-identification as a man or a woman, as opposed to one’s anatomical sex at birth. Usually, one’s gender identity matches one’s anatomical sex. However, for transgender people, gender identity does not align with their anatomical sex, or the gender they were assigned at birth. Someone born appearing male may have a strong self-image and self-identification as a woman; someone born appearing female may have a strong internal self-image and self-identification as a man. Some transgender people seek medical treatment in the form of hormone therapy or surgery to have their physical sex changed to agree with their gender identity.
The phrase gender expression refers to how society views one’s gender identity based on cues like clothing, haircut, voice, and name: recognizing someone as a woman or a man. Transgender people generally want their gender expression to match their gender identity and not necessarily the gender they were assigned at birth.
The term transgender is a blanket term used to describe someone who, in one or more ways, does not conform to stereotypes of gender identity and/or gender expression. This term includes: female and male cross-dressers, transvestites, drag queens or kings, female and male impersonators, intersexed individuals, pre-operative, post-operative, and non-operative transsexuals, masculine females, feminine males, all persons whose perceived gender or anatomic sex may be incongruent with their gender expression, and all persons with gender characteristics and identities who are perceived to be androgynous.
A transitioning transgender person is one who is modifying his or her physical characteristics and gender expression to – in effect – satisfy the standards for membership in a gender other than the one they were assigned at birth. Some transgender people seek medical treatment in the form of hormone therapy or surgery to make their physical sex agree with their gender identity, while others do not. Transition is done with the help of medical professionals in accordance with recognized standards of care that have been in use since the 1960s. Transition may include a trial living period of at least one year to determine the individual’s comfort with the new gender and, if the transitioning person so decides, continued hormone administration and life in the reassigned gender sometimes accompanied by surgical reconstruction of primary and secondary sex characteristics, facial structure, etc.
Gender identity discrimination means treating individuals differently in the workplace, or taking negative employment action against them because of their gender identity or gender expression.
Gender identity discrimination against transgender people in the workplace may include:
- Being fired when your employer finds out about your plan to undergo sex reassignment surgery.
- Being fired for cross-dressing outside the workplace if your employer finds out.
- If you as a transgender person attempt to wear clothing appropriate to your gender identity you may be disciplined, reassigned or terminated, based on a failure to conform to a company dress code policy that makes no effort to accommodate transgender individuals.
- Being refused access to workplace restroom facilities and harassed by coworkers and supervisors on the basis of your gender identity.
- Being denied equal treatment in public accommodations, which can affect your ability to successfully function in the workplace. For example, transgender people have been asked to leave restaurants, hotels, stores, medical facilities, and educational institutions. This discrimination may make it difficult, if not impossible, to successfully perform one’s job.
If any of these things have happened to you on the job, you may have suffered gender identity discrimination.
Currently there is no federal law that universally and explicitly provides protection for LGBT workers, and fewer than half of states have laws that protect workers based on sexual orientations and gender identity/expression. Discrimination based on gender identity is not specifically prohibited by the federal laws that generally apply to discrimination in employment. Discrimination laws specifically prohibit discrimination based on race, color, sex, religion, national origin, age, and disability.
The Employment Non-Discrimination Act currently being proposed in Congress is federal legislation which explicitly prohibits discrimination in the workplace based on sexual orientation or gender identity. The Act is modeled after current civil rights legislation like the Civil Rights Act of 1964 and the Americans with Disabilities Act. ENDA would protect transgender workers from being denied jobs and promotions, fired, demoted, or otherwise discriminated against solely on the basis of their gender identity.
As recently as December of 2014, the federal government has stated that in cases against state and local public employers the Department of Justice will interpret the Civil Rights Act of 1964 to protect people from discrimination based on gender identity.
However, some people have argued successfully that discrimination on the basis of gender identity is a form of discrimination based on sex, or disability, which are both illegal under federal law and the laws of most states. For more information, see questions 4, 5 and 6 below.
4. What is the difference between gender identity discrimination and sexual orientation discrimination? Am I protected by sexual orientation discrimination laws?
Sexual orientation as a legal concept is generally understood to refer only to whether a person is homosexual (gay), heterosexual (straight), or bisexual. Not all transgender people are gay. In fact, many transgender people identify as straight; many transgender women have male partners and many transgender men have female partners. When transgender people face discrimination, it often has no relationship to their sexual orientation.
Twenty-two states and the District of Columbia make it illegal to discriminate in employment on the basis of sexual orientation. Of these, Nineteen and the District of Columbia explicitly include transgender and transsexual people. In other states where courts have analyzed the state’s sexual orientation anti-discrimination law, courts have narrowly interpreted the laws to exclude gender identity on the grounds that there is no evidence that gender identity was intended to be included in the law’s definition of sexual orientation. Maffei v. Kolaeton Industry, Inc., 626 N.Y.S. 2d 391 (N.Y. Sup. Ct. 1995) (holding that the definition of sexual orientation in New York City ordinance does not include transsexualism); Underwood v. Archer Management Services, Inc., 857 F. Supp. 96, 98 (D.D.C. 1994) (“a conclusory statement that [transsexual plaintiff] was discharged on the basis of transsexuality . . . does not constitute a claim for relief on the basis of . . . sexual orientation”) However, in all three of these locales, discrimination on the basis of gender identity is now illegal under a state law basis other than sexual orientation: Connecticut (sex); New York (sex); District of Columbia (personal appearance)”. For more information about states that have anti-discrimination laws protecting transgender individuals see lgbtmaps.org.
If you are a transgender person who is considering bringing a discrimination claim in a state or city with a sexual orientation discrimination ordinance that does not specifically include gender identity, you should consult with a local attorney, as well as a person familiar with the history of the state law or city ordinance, to determine whether this strategy is likely to be successful.
5. What is the difference between gender identity discrimination and sex discrimination? Am I protected by sex discrimination laws?
Sex discrimination is treating an applicant or employee unfavorably because of that person’s sex, or affiliation with an organization or group associated with a particular sex. The law forbids discrimination based on sex when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits and any other term or condition of employment. Gender identity discrimination is more specific to people who don’t conform to stereotypes of gender identity and/or gender expression. For example:
- Albert identifies himself as a male. His peers continually refer to him directly as “Ms” and he repeatedly hears comments from peers about himself using female pronouns such as “she” and “her”. Albert has asked that people address him appropriately but most make no effort; or
- You are hired for a new job and subsequently inform your new employer that you will be transitioning. After hearing this your employer tells you that the position you were hired for is no longer available.
- a new company identification badge with your new name and photo;
- a new name tag on door/desk/cubicle;
- updating any organization charts, mailing lists, and other references to your old name;
- paperwork for the HR employee database, effective the day of transition, to change the following: new name; gender marker (‘M’ or ‘F’); computer handles and account IDs, if the old ID is inappropriate; e-mail address, if it contains the old name
- restroom use and communicating the decision to other employees;
- new introductions.
- Employers have the right to implement employee dress codes including those according to gender.
- Transgender employees have the right to comply with sex-specific dress codes according to their gender identity.
- Allow the employees to use the bathroom designated for the gender that they associate with
- Provide unisex bathrooms for all employees, and
- Do not require employees to affirmatively tell their employer which gender they identify with.
Until recently, federal courts have uniformly held that transgender people are not protected under Title VII (the law which makes sex discrimination illegal) on the ground that Congress did not intend for the term “sex” to include being transgender.
Recently, however, some courts have concluded that transgender persons are protected from discrimination under Title VII and other sex discrimination statutes. These decisions are based upon an older U.S. Supreme Court case that considers discrimination based on gender stereotyping to be illegal sex discrimination prohibited by Title VII.
This issue has developed similarly in state courts as in federal courts. In the past, employment gender identity discrimination cases brought under state laws prohibiting sex discrimination have been unsuccessful, including cases in Connecticut, Pennsylvania, and the District of Columbia. More recently, however, some state courts and state administrative agencies have indicated a willingness to depart from older Title VII precedents and to interpret state and local sex discrimination laws to include transgender people. These states and cities include Massachusetts, New York City, Connecticut, Hawaii, Vermont and New Jersey.
If you have been discriminated against because of your gender identity and/or gender expression, you may wish to consult with a local attorney to determine whether you can and/or should bring a claim for sex discrimination under federal or state law.
6. Am I protected by disability discrimination laws, since gender identity disorder is a medical condition?
Transgender people are not protected under federal laws that prohibit discrimination on the basis of handicap or disability. Although transsexualism has been recognized for many years as a medical condition, both of the federal laws making it illegal to discriminate on the basis of disability, the Rehabilitation Act, and the Americans with Disabilities Act (ADA) explicitly exclude both transsexualism and gender identity disorders not resulting from physical impairments from protection.
Although most states and the District of Columbia have state laws that prohibit employment discrimination against people with disabilities, like federal law, several of these state laws expressly exclude transgender people, including Indiana, Iowa, Louisiana, Nebraska, Ohio, Oklahoma, Oregon, Texas, and Virginia. Courts in some states where the state law does not specifically exclude transgender people, including Pennsylvania and Iowa, still have held that being transgender is not a protected disability.
More recently, however, some state courts and state administrative agencies have indicated a willingness to depart from older precedents and to interpret state and local disability discrimination laws to include transgender people. These states include Massachusetts, New Jersey, Florida, Illinois, and Oregon.
If you have been discriminated against because of your gender identity and/or gender expression, you may wish to consult with a local attorney to determine whether you can and/or should bring a claim for disability discrimination under federal or state law.
7. Are there any other laws or regulations which make it illegal to discriminate on the basis of gender identity specifically
Currently there are federal laws that protect workers from discrimination generally, but there is no federal statute prohibiting private sector sexual identity discrimination specifically. However, the EEOC has issued regulations stating that discrimination against a person because they are transgender is discrimination because of sex and therefore covered under Title VII of the Civil Rights Act of 1964. See Macy v. Department of Justice, EEOC Appeal No. 0120120821 (April 20, 2012).
The Attorney General has also stated recently that going forward the federal government will interpret the Civil Rights Act of 1964 to include protection against discrimination based on gender identity. This will protect employees of state and local employers.
If you work for the federal government you are protected. In 2014, President Obama signed Executive Orders, banning discrimination on the basis of gender identity in the federal government and on the basis of sexual orientation and gender identity for federal contractors. The orders were implemented on December 3, 2014.
At the state level sexual orientation discrimination laws are in place in 18 states and the District of Columbia. More than 150 localities ban employment discrimination on the basis of both sexual orientation and gender identity. For more information on individual state and local laws go to: www.aclu.org/maps/non-discrimination-laws-state-information-map.
Some major corporations and other employers have adopted non-discrimination policies that protect transgender people. These policies may be more, but not less, stringent than state or local laws. There are also a number of governmental entities which have also adopted non-discrimination policies that protect their transgender employees. Some members of the United States Congress have policies prohibiting discrimination on the basis of gender identity and expression for those who work in their offices.
The law in this area is constantly changing, with numerous legislative efforts in progress around the country to add gender identity to state laws, local ordinances, governmental regulations, and corporate policies. You should check with a local attorney, transgender rights organization, or your corporate human resources department to see whether there have been any recent changes in the law or policies affecting your employment. Even if there is not legal protection with respect to employment, you may be able to encourage your employer to voluntarily cease discriminatory activity and/or to educate others in your workplace to help improve your employment situation.
Harassment is a form of discrimination which can also rise to the level of a hate crime. It can include inappropriate comments, jokes, and threats. In 2009 a federal law protecting transgender people from hate crimes was passed in Congress and signed by President Obama. Some states have transgender-inclusive hate crime laws. These laws also prohibit sexual harassment, which is a form of discrimination that occurs when a boss, supervisor, or co-worker subjects you to hostile, offensive or intimidating behavior because of your sex that is so severe or pervasive that it interferes with your ability to perform your job. For a more detailed list got to: http://transgenderlw.org/hatecrimelaws/index.htm.
Some courts and administrative agencies have indicated a willingness to interpret state and local sex discrimination laws to include transgender people. The U.S. Supreme Court has also allowed sexual harassment claims under federal law where the person responsible for the harassment and the victim of harassment are of the same sex, as long as the harassment was because of sex. Because sexual harassment is a form of sex discrimination prohibited under these laws, it may seem logical to assume that a transgender employee harassed because of his or her gender identity would be able to file a harassment claim, as long as the harassment was because of sex. However, the law is not yet fully developed in this area and it is unclear how a court or administrative agency would respond to this type of legal claim.
If you are a transgender person considering bringing a harassment claim in a state or city with a discrimination law that does not specifically include gender identity, you should consult with a local attorney as well as a person familiar with the history of the state law or city ordinance to determine whether this strategy is likely to be successful.
It depends. Jokes or slurs about your gender identity may be considered a form of sexual harassment, which courts have determined is a form of illegal discrimination. However, federal law does not prohibit simple teasing, offhand comments, or isolated incidents that are not extremely serious. Generally the conduct must be sufficiently frequent or severe to create a hostile work environment or result in a “tangible employment action,” such as hiring, firing, promotion, or demotion. The EEOC notes that harassment can include offensive remarks about a person’s sex. For more information about hostile work environments, see our page on sexual harassment.
You may choose to keep your gender identity a private matter; nothing requires you to disclose this information to your employer if you do not choose to do so. However, if you are experiencing discrimination or harassment at work, you may wish to speak with your company’s human resources department and/or a member of management to see whether your employer can work with you to solve the problems you are facing.
Those who have gone through the process of transitioning in the workplace strongly recommend that you share your intention to transition with your employer in advance, in a face-to-face, one-on-one meeting. It’s not a good idea to surprise your boss by transitioning without an advance notice. Your boss should be part of the planning process: you will need your boss as an ally if you are to have a successful transition. Your management and others involved in the planning should become familiar with educational resources, including company policy and books on the subject.
It is recommended on the day of your transition that your employer hold a department meeting or discuss the transition in a meeting that has already been scheduled. Everyone in your work group with whom you interact often should be there. The manager of the work group (the department head, for example) should make the announcement, as it is important for the highest level manager in the group to show support.
Some other workplace issues that may need to be quickly resolved once you have started your transition include:
For more information about the transition process in the workplace, see Checklist for Transitioning in the Workplace.
Generally not. In some states, religious employers, like churches and religious schools are exempted from anti-discrimination laws. For more information, please see our page on state religious discrimination laws. If you work for a non-religious employer, however, your employer may find it difficult to maintain a legitimate business justification for policies or practices which discriminate against transgender employees. The personal religious beliefs of a particular supervisor would rarely, if ever, be a legitimate basis for discrimination in this situation, especially if other company employees had been treated differently.
(This assumes discrimination on the basis of gender identity is against the law; however, this form of discrimination either may not be specifically against the law or not yet legally resolved in certain states, as discussed above.)
Like non-transgender people, transgender people want to go to work in clothes that conform to their gender identity and wear the clothes that they feel the most comfortable wearing. However, opposition to what some consider to be cross-dressing in the workplace is perhaps the most commonly voiced objection to transgender rights, so you may need to educate your employer and coworkers on this issue to allay their fears. Under Title VII, employment action based on a female employee’s failure to comport with female sex stereotype in appearance and behavior is illegal sex discrimination. Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).
The following guidelines were created by the City and County of San Francisco, California, to ensure dress codes are non-discriminatory:
If you live in a state or city which makes it illegal to discriminate on the basis of gender identity, or work for a company with an anti-discrimination policy, then your employer should already have adopted a similar policy to prevent discrimination claims. If you live in an area with no legal protections for transgender employees, you may wish to ask your employer to adopt this policy to prevent future confusion or disputes over dress code compliance.
If this does not resolve the problem, or your employer is not willing to be cooperative in promoting a solution to this problem, you should consult an attorney familiar with transgender and/or discrimination issues in employment to further advise you and to communicate with your employer.
14. My employer will not allow me to use the restroom appropriate for persons of my gender identity, after one of my coworkers complained. Every time I need to use the restroom, I have to leave my office and go to a public building next door. What can I do?
The higher courts have not entirely answered this question yet, though laws and agency guidance throughout the nation is heading in a definite direction. Some states, like Florida and Utah, have attempted, and failed, to pass laws requiring employees to use the bathroom of the sex they were born. On the other hand, Colorado, Iowa, and Vermont, require employers to allow employees to use the restroom of the gender they identify with. In April 2015, the U.S. Equal Employment Opportunity Commission (EEOC) found that a transgender female that had informed her employee of her gender identity, must be allowed to use the bathroom of the gender with which she identifies. Additionally, in 2014 President Obama signed an executive order prohibiting discrimination against LGBT federal employees and contractors.
The Occupational Safety and Health Administration (OSHA) requires employers to provide bathrooms to employees for health reasons. OSHA also requires that employers not place unreasonable restrictions on bathroom use. OSHA has found that when employers limit which bathrooms transgender employees may use, the employees may suffer psychological damage. Furthermore, the discrimination may embarrass employees so much that they will refuse to use bathrooms at work, which could cause physical harm. The recent guidelines from OSHA require that transgender people have access to bathrooms that match the gender with which they identify. OSHA further requires that employees be able to work in a manner that is consistent with their everyday lives based on their gender identity, regardless of whether the employee has actually transformed his or her sex. That said, OSHA has not placed requirements on employer bathroom policies regarding transgender individuals, rather, they have merely suggested actions employers should take, including:
OSHA recently provided a “Guide to Restroom Access for Transgender Workers” to help aid with some of the more practical challenges and questions of how to best address the needs of transgender employees. While the suggestions above can help combat some of the challenges surrounding bathrooms, OSHA guidelines are clear to state that employers may not require that transgender employees exclusively use these restrooms. The 4th Circuit on March 27, 2015 held in the case of Lusardi v. Dep’t of Army that denying an employee equal access to a common restroom corresponding to the employee’s gender identity is sex discrimination. Thus, an employer cannot avoid the requirement to provide equal access to a common restroom by restricting a transgender employee to a single-user restroom instead.
Many employers have successfully dealt with the issue of restroom usage on a case-by-case basis. Usually, the simplest solution is the best: the transgender employee should use the restroom matching the current gender presentation. On the first day of a workplace transition, the employee will begin to use the restroom matching his or her new gender. This decision should be communicated to all employees with the support of management. If management supports the right to use a gender-appropriate restroom, other employees will be encouraged to go on with their jobs and quickly forget that there was ever an issue. Another acceptable solution may be for the transgender employee to use a single-occupancy unisex restroom, if one is available in close proximity to the work area.
If this does not resolve the problem, or your employer is not willing to be cooperative in promoting a solution to this problem, you should consult an attorney familiar with transgender and/or employment discrimination legal issues to further advise you and to communicate with your employer about its legal obligations.
15. Are my employer’s health benefits required to pay for my medical treatment or sex reassignment surgery?
The answer to this question depends on what the employer’s contract with the health insurance company says. Currently over 200 of the largest U.S. employers offer health insurance plans that cover transition related medical treatment. New developments have addressed gender identity discrimination at the state and federal level. At the federal level, the automatic ban on Medicare coverage for sex reassignment surgery has been lifted.
The U.S. Department of Health and Human Services has stated that sex reassignment surgery is a medically necessary and effective treatment for people who do not identify with their biological sex, and thus Medicare will not automatically deny coverage. Coverage will be determined on a case-by-case basis.
While some companies that provide medical benefits for employees undergoing sex reassignment choose not to publicize the benefit, most simply do not offer the benefit, citing cost concerns, previous lack of demand, and/or the policies of the company’s insurance carrier. However, if you work for a company which has a policy prohibiting discrimination on the basis of gender identity and/or gender expression, or company management has proven to be receptive to transgender workplace issues, it may be possible to convince your company to take the next logical step to fully support the medical needs of transgender employees.
If your employer is interested in assisting transgender employees by covering sex reassignment surgery under existing insurance coverage, it may be necessary to explore whether the company’s insurer will allow this benefit to be offered, or to change insurance companies. It also may be helpful to consult with other companies offering sex reassignment surgical coverage to obtain more information about the potential costs and coverage needed. States are rapidly beginning to change their laws in this area.
The costs associated with transitioning are not just those related to the actual surgery. Psychological counseling is required in order to undergo sex reassignment surgery. Hormone treatments are one of the biggest expenses, but follow-up doctor’s office visits and medical care are also necessary. While your employer may incorrectly assume that the costs associated with sex reassignment are cosmetic or elective, medical professionals have recognized gender dysphoria is a mental/psychological diagnosis. If someone is diagnosed as gender dysphoric, sex reassignment surgery is often recommended as a component of that treatment. However, many insurance policies exclude sex reassignment surgery and other treatments for gender dysphoria from the list of covered medical procedures.
Federal anti-discrimination laws are enforced by the EEOC. Protections under state and local laws are generally enforced by state or local anti-discrimination agencies, which may be called a fair employment, civil rights, or human rights commission or agency. For more information about your state and local agencies see our page on filing a complaint.
To file a complaint under state and local statutes, please contact your state or local anti-discrimination agency or an attorney in your state. For more information, see our page on filing a complaint.
For remedies available under state and local statutes, please contact your state or local anti-discrimination agency or an attorney in your state. For more information, see our page on filing a complaint.
Because there are many sources of state and local laws relating to discrimination based on gender identity, there are too many different deadlines to summarize here. To protect your legal rights, it is always best to contact your state or local governmental agency, or an attorney promptly when discrimination is suspected. For more information, see our page on filing a complaint.
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