Know Your Rights

FAQ About Transgender Workplace Rights

Q. What exactly is ENDA and what will it change?

A. ENDA, the federal Employment Non-Discrimination Act, would ensure that in most U.S. workplaces, a person’s qualifications and job performance, rather than gender identity or sexual orientation, are the factors that determine success on the job. It would provide a powerful tool for LGBT employees to work through the courts to ensure equality for transgender, gay, lesbian and bisexual people across the country.

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Q. What kind of employment protections do transgender employees have without ENDA in place?

  • A growing number of private companies have antidiscrimination policies on their books that cover bias against transgender people.
  • Although the federal Americans with Disabilities Act has language that explicitly excludes trans people from its protections, some advocates have been successful in bringing state disability claims on behalf of trans people.
  • Federal courts are increasingly using the bar against “sex discrimination” in Title VII of the 1964 Civil Rights Act to combat anti-trans discrimination.
  • Many federal employees are covered by agency-level equal-employment opportunity (EEO) policies (see “Federal Employees” below).
  • A number of unions—some of the largest in the country—have transgender nondiscrimination clauses in some of their contracts (see "Unions" below).

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Q. How are transgender people covered by existing sex discrimination laws?

A. It is now widely considered sex discrimination when someone is treated differently for failing to conform to sex stereotypes or for changing their sex—or in some cases because gender identity is part of one’s sex.

In 1989, the Supreme Court accepted the idea that treating someone differently on the basis of stereotypes could be sex discrimination—in a case that had nothing to do with transgender people. The Court ruled in the case of Price Waterhouse v. Hopkins that Title VII did indeed protect a female accountant who didn’t make partner at her firm just because her demeanor didn’t match her employer’s idea of what a woman should look like. A supervisor wrote in a job evaluation that Hopkins could do with a “course in charm school.”

2008’s Schroer v. Billington moved things ahead a little farther. A transgender woman who was offered a job at the Library of Congress when she was “David” was told she didn’t have the job after all when she shared her intention to transition to “Diane.” The court analogized that just as discrimination “because of religion” easily encompasses discrimination based on a change from one religion to another, discrimination based on a person’s change of sex is discrimination because of sex.

Some laws define sex or gender as inclusive of gender identity. New York City's Human Rights Law, for instance, has since 2002 redefined “gender” as referring not just to someone’s sex but also to “a person’s gender identity, self-image, appearance, behavior or expression, whether or not that gender identity, self-image, appearance, behavior or expression is different from that traditionally associated with the legal sex assigned to that person at birth.”

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Q: Have there been any groundbreaking legal victories against anti-TGNC discrimination in the workplace?

A: Yes. On December 6, 2011, a longstanding workplace discrimination case, Glenn v. Brumby et. al., ended in a groundbreaking ruling that firing someone based on gender-nonconformity violates the Constitution’s prohibition on sex discrimination.

The Eleventh Circuit Court of Appeals upheld a lower-court ruling in the Lambda Legal case, finding that the Georgia General Assembly had discriminated against Vandy Beth Glenn, a transgender woman who was fired from her job as legislative editor after telling her supervisor that she planned to transition from male to female. (To read her personal account of it, click here.)

The ruling got at the core of how the Constitution protects transgender people from workplace discrimination. Judge Rosemary Barkett, writing for the unanimous three-judge panel, said, “A person is defined as transgender precisely because of the perception that his or her behavior transgresses gender stereotypes.” She went on, “[A] government agent violates the Equal Protection Clause’s prohibition on sex-based discrimination when he or she fires a transgender or transsexual employee because of his or her gender non-conformity.”

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Q. How do you know which bathroom a TGNC person should use?

A. A TGNC person should use the bathroom that corresponds to his or her gender identity. But employers and coworkers don’t always welcome that idea. Trans people often endure extreme discomfort or inconvenience just to keep a job—traveling some distance to use a gas station restroom, for instance, or simply “holding it.”

The difficulties some TGNC people have accessing bathrooms in the workplace is a key rights violation because it’s pretty much impossible to work without having a bathroom to use. The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) prohibits employers from placing “unreasonable restrictions” on employees’ access to restrooms. (For more about this issue, read our FAQ on restroom access.)

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Q. What name and gender pronouns do you use if a transgender person’s ID still has their pre-transition name and gender?

A. It’s important for transgender people to have their preferred names and pronouns respected regardless of what it says on an ID card. Trans employees are also entitled to full privacy in such matters; employers should refrain not just from treating an employee differently if his or her gender transition comes to light but also from sharing that information. It’s also within every human resource department’s responsibilities, however, to counsel members of the workforce and discusses an approach with which the employee is comfortable. (For more about IDs, read our FAQ).

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Q. Are employers allowed to institute dress codes according to gender?

A. Yes, employers are legally permitted to set gender-based dress codes as long as they don’t make the requirements more difficult for women than men, or vice versa. Such rules can pose a problem for transgender people when employers force them to present according to birth sex, rather than in accordance with their gender identity. The medical community now recognizes that it is essential to the health and well-being of transgender people to live in accordance with their gender identity in all aspects of life, including gender expression via clothing. And employers increasingly see the wisdom in making that policy. If your employer is not respecting your gender identity within your workplace dress code policy, contact Lambda Legal at 866-542-8336 or go to www.lambdalegal.org/help.

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Q: I'm an employer. What can I do to make my workplace welcoming and respectful of TGNC employees?

  • Adopt a nondiscrimination policy that explicitly bars treating transgender people differently from other workers.
  • Ensure that your employees have access to restrooms in accordance with their gender identity. Add a gender-neutral restroom option.
  • Provide mandatory trainings on trans issues. Don’t wait until your first employee transitions; do it now in order to create a welcoming environment.

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IF YOU ENCOUNTER DISCRIMINATION OR WANT MORE INFORMATION: Contact Lambda Legal at 212-809-8585, 120 Wall Street, 19th Floor, New York, NY 10005-3919. If you feel you have experienced discrimination, call our Legal Help Desk toll-free at 866-542-8336 or go to www.lambdalegal.org/help.

FEDERAL EMPLOYEES: Updated Antidiscrimination Policies Include Transgender Workers

Several federal agencies have in recent years updated their employee antidiscrimination policies to include transgender workers. And they have done so by defining “gender identity” as part of a person’s sex. Here are excerpts from two of them:

•    Office of Personnel Management (which manages the federal government’s civil service): “OPM does not tolerate any employment discrimination on the basis of race, color, religion, sex (including pregnancy and gender identity), national origin, age, disability, or genetic information."

•    Equal Employment Opportunity Commission: “EEOC employees are protected by federal laws prohibiting discrimination on the basis of race, religion, color, sex (including pregnancy and gender identity), national origin, age, disability, family medical history, or genetic information.”

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Unions With Protections for TGNC Workers

These unions—some of the largest in the country—have transgender nondiscrimination clauses in some of their contracts:
•     American Federation of State, County and Municipal Employees
•     American Federation of Teachers
•     Office and Professional Employees International Union
•     Service Employees International Union
•     United Auto Workers
•     UNITE HERE
•     United Food and Commercial Workers International Union

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Other Efforts to Address Discrimination Against TGNC Workers

TGNC people often have trouble landing jobs. The classic story is being called in to interview for a job that you’re highly qualified for only to watch your interviewer’s face fall—and hearing the opening has already been filled. When prospective employers overlook your job application in the first place because they happen to know you’re transgender, that’s discrimination too. But experiencing someone’s change-of-mind in person is especially upsetting, not least because it’s so hard to prove such bias case-by-case.

A 2010 study by Make the Road New York set out to measure this problem by sending out “matched pairs”—job candidates equal to each other in every way except that one was TGNC and the other was not—to do interviews in the Manhattan retail industry. In one round, 49% of TGNC employees experienced discrimination (i.e. they weren’t offered a job but their non-transgender equivalent was offered a job). The rate was 59% in a second round. After the New York Attorney General’s office became involved, a favorable settlement was reached with one retailer which included a revision to the employee handbook’s requirements for gender-specific appearance and a mandatory training for employees on transgender issues.

So what can you do about this anti-transgender bias and the way it so often hinges on “gender expression”? The trans community is increasingly fighting back not just in courts, legislatures and boardrooms, but also through networking and mentoring efforts. Transgender job fairs are more and more common at local LGBT centers around the country. And the Transgender Economic Empowerment Initiative (TEEI) in San Francisco is behind a new push to specifically target workshops and mentoring to TGNC job-seekers.

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FOR MORE INFORMATION: Contact Lambda Legal at 212-809-8585, 120 Wall Street, 19th Floor, New York, NY 10005-3919. If you feel you have experienced discrimination, call our Legal Help Desk toll-free at 866-542-8336 or go to www.lambdalegal.org/help.