Gender Transitioning in the Workplace

Welcome to the EEO Exchange entitled Gender Transitioning in the Workplace.This EEO Exchange training was originally conducted as a live web collaboration on November 16, 2016.

The purpose of the EEO Exchange is to create an online forum that promotes and encourages the exchange of EEO-related knowledge and information.  We want to strengthen the knowledge base of the Commonwealth’s EEO community and promote collaboration, understanding and idea generation. 

This course will be discussing gender transitioning in the workplace.  As EEO Officers and Specialists, it’s important for us to know and understand policies and processes relevant to the transitioning process.  The objectives for this session are to:

Foster an understanding of issues that transgender employees may face in the workplace

Identify the policies that protect employees from discrimination based on gender identity or expression

Share guidance and resources to assist agencies and employees during the transition process

Reinforce the need to provide a workplace that is supportive and respectful and free from discrimination

UCLA Law School, it is estimated that there are 1.4 million transgender persons in the United States, 0.6% of the population.  A recent survey published in January 2015 by the Washington Post reported that 25% of transgender adults state that they’ve lost a job because they did not conform to gender norms, and a staggering 90% say they’ve faced other forms of transgender-based discrimination in the workplace.

Though it is numerically not very large, the transgender community faces a disproportionate amount of discrimination in employment, housing and health care services.  As such, it is extremely important that agencies ensure that all employees feel welcomed, respected and valued as they use their talents for the betterment of the commonwealth. 

We want to emphasize that the Commonwealth is committed to fostering a culture of diversity and inclusion.  It’s our role as Equal Opportunity Officers and Specialists to ensure equal employment opportunity for all employees.  We are a diverse workforce which provides public service to a diverse population.  We need the talents of all employees and each member of our workforce deserves to be treated with dignity and respect. 

We recognize that for some individuals this can be a confusing topic.  We are now going to look at some definitions associated with transitioning in the workplace. 

Sex is the term which refers to the classification of people as male or female.  At birth, infants are assigned a sex based on a combination of biological characteristics including chromosomes, hormones and reproductive organs.

Gender refers to the behavioral, cultural, psychological, or social traits typically associated with one’s sex, rather than biological characteristics.

Gender identity is an individual's internal sense of being male or female or both or neither regardless of sex assigned at birth. 

Gender expression refers to appearance, mannerisms, and other personal behaviors or characteristics to communicate masculinity, femininity or androgyny.  Examples include clothing, communication patterns, hairstyles, and voice or body characteristics.  A person’s gender expression may or may not be consistent with socially prescribed gender roles, and may or may not reflect an individual’s gender identity.

Sexual orientation refers to heterosexuality, homosexuality or bisexuality.  Keep in mind that a person’s sexual orientation is distinct from a person’s gender identity and expression.  A person may identify as gay, lesbian or bisexual.

Transgender refers to an individual whose gender identity is different than the sex assigned at birth.

Someone who was assigned the male sex at birth but who identifies as female is a transgender woman. Likewise, a person assigned the female sex at birth but who identifies as male is a transgender man.

Some individuals who would fit this definition of transgender do not identify themselves as transgender; rather they identify simply as men and women, consistent with their gender identity.

Finally, we come to the definition of Gender Transition, otherwise known as Transition, which refers to the process or time period when individuals change aspects of themselves to be consistent with their gender identity.  

Now that we’ve examined the definitions associated with transitioning in the workplace, let’s look at the commonwealth’s resources and roles. 

For the transitioning process in the workplace to go as smoothly as possible, the Commonwealth has important resources and roles which need to work together.  First, each agency has a Human Resources Office, which will assist employees during the transition process by addressing such issues as name changes, benefits questions, communication in the workplace, etc. 

Each agency also has a person assigned to the role of EEO Officer, who will ensure that the Commonwealth’s non-discrimination policies are being applied to the transitioning employee.

The Office of Administration, Equal Employment Opportunity Division is available to provide additional guidance and answer agency questions.   

The Commonwealth has personnel designated to handle Leave Administration by responding to questions and providing assistance regarding leave to which a transitioning employee may be eligible. 

All questions regarding health benefits should be directed to the Commonwealth’s HR Service Center. 

Finally, the Commonwealth has the State Employee Assistance Program (known as SEAP).  Employees in participating agencies are eligible for SEAP benefits that may be used to support employees and family members with personal issues, including those related to transition. 

Transitioning can be a complex and difficult process but there are some things that we, as an employer, can do to help the process go smoothly.

Our top priority is the need to be aware of the necessity for confidentiality and privacy in this process.  An employee’s transition should be treated with as much sensitivity and confidentiality as the employee prefers.  Employees in transition often want as little publicity about their transition as possible. 

Employees may disclose medical information during their transition.  Although this disclosure is not covered under the Health Insurance Portability and Accountability Act (HIPAA), agencies must treat this information as if it were.  As such, any information disclosed by the employee cannot be shared with other staff without permission. 

Questions from co-workers or others regarding an employee’s transition should be referred to the employee or to a person whom both the employee and employer agree to designate this responsibility.  It should be emphasized in the workplace that questions regarding an employee’s medical procedures, body and sexuality are inappropriate. 

The transgender status of any former employee shall not be disclosed to subsequent employers when responding to a reference request or background check. 

Should an employee notify his/her supervisor, the Human Resources Officer or the EEO Officer that he or she will be transitioning, it is recommended that a workplace transition plan be developed.  A transition plan is a useful tool to help make sure that all issues are addressed so that the transition process can be completed smoothly and with as few complications as possible.  Ideally, the transitioning employee, together with his or her supervisor, and the agency’s HR representative, create a plan outlining the steps to be taken to provide a successful transition.  Please note that no employee is required to utilize a workplace transition plan or to give advance notice of an intended gender transition to the employing agency.

The plan may include: The date on which the employee would like to assume his or her new gender identity at work. The name the employee prefers to use after transitioning. When the announcement will be made. Who will be told of the transition and the manner in which coworkers, clients and others in the workplace will be informed of the transition. What administrative changes are required to support the gender transition, such as ID badges, business cards, names plates, etc.; and sanitary facilities to be used

We will be covering several of these in more detail as we progress through the course.  Now let’s move on to see how others should be informed of the transition process. 

One of the first questions that arises during the transitioning process concerns who will be told about the transition, when and how.  If possible, the agency HR Office and the employee who is transitioning should decide who will be told of the transition and the manner in which coworkers, clients and others in the workplace will be made aware of the transition.  In some cases, the employee may wish to notify co-workers and others with whom they interact about their decision to transition.  In other cases, the employee may want the HR office to notify others about the transition.  Either choice is acceptable. 

Efforts to notify co-workers about the transition should be made in close proximity to the employee’s presenting at work.  The announcement should include information on the date of the transition; the employee’s preferred name following the transition; the agency’s support of the employee and its expectations that employees will conduct themselves in accordance with Commonwealth policy.

Employees are to be addressed by the name and pronoun of their preference.  Managers, supervisors, and coworkers should take care to use the correct name and pronouns in employee records and in communications with others regarding the employee.

Because most people have not been exposed to gender transition, it is likely that co-workers will make mistakes, such as referring to the employee in gender transition by the wrong name or pronoun, or asking inappropriate questions.  Employees in transition should correct a co-worker who makes a mistake.  If, after a reasonable period of time, an employee or employees continue to address the employee who is transitioning by the wrong name or pronoun or asks inappropriate questions, the agency HR Director or EEO Officer should be notified.  Continued intentional misuse of the employee's new name and pronouns, and reference to the employee's former gender by managers, supervisors, or coworkers is unacceptable and may constitute harassment or create a hostile work environment.  Also, such misuse may be a violation of Commonwealth anti-discrimination policies. 

We will now address the issues of name and gender changes.

Sometimes an employee in transition will legally change his or her name, but other times this will not happen.

If an employee’s preferred name does not match the individual’s legal name, the preferred name should be used on non-legal documentation such as telephone directories, identification badges, name plate, business cards, etc.  However, the employee’s legal name must be used in SAP for legal documents, payroll, tax records and benefits.  The Commonwealth’s email system, Outlook, is connected to SAP.  As such, an employee’s email can be assigned a nickname; however, it will default to the employee’s legal name.  The agency can take steps to address some of these issues so that the employee can get a new ID badge, business cards, etc. on the first day of the transition process.

In regard to changing genders, the HR Service Center will process a gender change upon the employee’s request.  No documentation is required to support a gender change in SAP.  This is similar to someone requesting to change their race as both race and gender are self-identified.

Next we will talk about the issue of sanitary facilities for employees.  Employers are required to make access to adequate sanitary facilities including, but not limited to restrooms, locker rooms, showers, etc., as unrestrictive as practicable for all employees.  All employees, including transgender employees, are to have access to sanitary facilities that correspond to their gender identity.

As EEO Officers and Specialists, at times you may get questions about work assignments for employees who are transitioning.  In most cases, specific workplace assignments and duties cannot be differentiated by gender.  For a transitioning employee, once he or she has begun working full-time in the gender that reflects his/her gender identity, agencies should treat the employee as that gender for purposes of all job assignments and duties.

Transitioning employees should not be required to have undergone or provide proof of any particular medical procedure in order to be eligible for gender-specific assignments or duties.

In general, agencies cannot implement gender-specific assignments or duties.  Some agencies, such as the Department of Corrections and the Department of Human Services, may need to adapt this guidance to comply with state or federal laws that require gender specific assignments. 

One of the most important things that EEO Officers and Specialists can address is related to how others respond to employees who are transgender or in transition.  If another employee, contractor, vendor or customer requests not to work with the transitioning employee because of the employee’s gender identity or expression, such a request cannot be honored. 

Agencies cannot subject employees to adverse employment actions based on gender identity. 

Therefore, an agency cannot honor a request to isolate the employee from certain other individuals.  Those who choose to work with the agency must abide by the commonwealth’s policies.  In such a situation, the HR Director or EEO Officer may be able to provide guidance or training to the requester regarding the Commonwealth’s nondiscrimination policies.

As was discussed earlier, transgender employees, like all employees, have the right to experience a workplace free of discrimination.

Commonwealth employees are protected from discrimination under Executive Order 2016-04, Equal Employment Opportunity on the basis of sex, sexual orientation and gender identity or expression.  Additionally, MD 505.30, Prohibition of Sexual Harassment in Commonwealth Work Settings, prohibits harassing conduct related to gender identity or expression.  If an employee believes he or she has been discriminated against on any of those bases, the employee has a right to file a complaint under Management Directive 410.10, Guidelines for Investigating and Resolving Internal Complaints of Discrimination. 

Let’s move on to a scenario.

Britney is an employee in Agency A.  She was assigned the male sex at birth and presented as a male when hired by the Agency.  She is a long-term employee with commendable performance and was promoted to management five years ago.  Recently, Britney informed her bureau director that she was transgender, and that she was going to present as a woman at work.  The bureau director was astonished and said this was going to be a major distraction to the workplace.  No transition plan was put in place.  When Britney began presenting at work as a woman, the Bureau Director removed certain assignments from her with no explanation.  He also prohibited her from using the women’s restroom after receiving complaints from co-workers.  Finally, co-workers subjected Britney to jokes and epithets and intentionally used the wrong gender pronouns.  The bureau director was aware of this behavior but did nothing to stop it. 

Let’s review a few takeaways from this scenario.  There are some specific areas where the agency failed to follow the guidance in this course. 

First, the agency did not develop a workplace transition plan for Britney.  Instead, the bureau director told Britney that her transition was going to be a distraction to the workplace. 

Second, the bureau director withheld assignments from Britney. 

Third, the bureau director also prohibited Britney from using restroom facilities which corresponded to her gender identity. 

Fourth, Britney was subjected to harassment by her co-workers which included jokes, epithets, and the intentional use of incorrect gender pronouns for her.  Additionally, the bureau director, a management employee, was aware of the harassment but did nothing to stop it. 

This scenario is based on litigation of the EEOC.  In January 2016, Deluxe Financial Services, Corporation agreed to settle a lawsuit filed by the EEOC for $115,000 when it discriminated against Britney Austin, a transgender woman who was a long tenured employee.  The company also entered a three year consent decree with EEOC to revise its EEO policies and take measures to prevent future incidents. 

In this case, Ms. Austin’s supervisor refused to let her use the women’s restroom after she began presenting as a woman at work.  She was also subjected to a hostile work environment, including epithets and use of the wrong gender pronouns repeatedly from supervisors and co-workers. 

It is important to note that although federal law does not specifically cover gender identity or expression, the EEOC sued the company under Title VII, claiming the company engaged in sex discrimination, specifically sex stereotyping, against Ms. Austin.  This is one of a series of recent successful cases the EEOC has pursued in instances of discrimination and harassment on transgender status as a form of Title VII sex discrimination.  While various federal courts have disagreed on whether or not gender identity and expression is covered under Title VII, Commonwealth policy strictly prohibits such conduct in our workplaces.  Not only is complying with these policies the right thing to do, it prevents expensive litigation for the Commonwealth. 

Now, let’s summarize the key points of this training. 

We learned about transgender issues in the workplace, including definitions of terms related to this topic. 

We identified Commonwealth policies that protect people from discrimination based on gender identity or expression.

We provided guidance designed to assist agencies and employees during the transition process including:

The importance and value of a transition plan;

The roles of the transitioning employee, the agency’s HR and EEO Offices, and managers and supervisors; and

We reinforced the need to provide a workplace that is supportive and respectful and free from discrimination.

Finally, we’ve highlighted the fact that EEO Officers/Specialists can play a very important role in helping to make the transition process smoother by being educated about transgender issues; enforcing Commonwealth anti-discrimination policies; and promoting equal employment opportunity for all employees.

Thank you for your participation!  Should you have any questions, please contact the Office of Administration, Equal Employment Opportunity Division at (717) 783-1130. 

This version of the course is intended for individuals who require an accommodation for a disability.  Once you have fully reviewed the information in this training, contact your Human Resources Office to request credit for completing this course.  You will not receive credit for completing this course until you do so.