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Article accepted by American Sexuality Magazine, published by the National Sexuality Resource Center of San Francisco State University

Ms. Etiquette and the Transgender Employee: Is Nothing Private Anymore?

Transgender issues are moving from the hushed privacy of the psychiatrist’s office to the noisy gossip at the office watercooler. Gender transition used to be a very private matter. The patient would disappear from his/her hometown and reappear somewhere else, ready for a fresh start with a different gender. The patient was strongly advised to keep the past secret. Those who failed to do so often regretted the severe social disapproval their indiscretions reaped. Now, however, gender transition commonly occurs in the workplace as law, public relations and political correctness combine to make employers more trans-friendly. Upper management and nameless co-workers know intimate details of the private life of an employee in transition. Decisions about bathrooms and locker rooms loom large. Is nothing private any more? But when gender transition takes place in the workplace, can there really be any expectation of privacy? 

The answer is that privacy is relative – not a yes or no proposition. There are zones of privacy, and one zone given up in a workplace gender transition is the fact that something about your…ah…gender has changed. Does that give distant co-workers the right to ask rude questions? Hardly. But management – don’t they at least have to know…er…certain details in order to assign the proper bathroom? And don’t co-workers who share the facilities have a right to know who is standing (or sitting) next to them in the lavatory? What is the proper business etiquette? What would Emily Post say?

The traditional law of employment, called the “employment at will doctrine,” gives a private employer the right to hire or fire an employee for any reason or no reason at all. Employers also have the right to set the terms and conditions of employment. This rule has been undermined, however, in regard to certain forms of discrimination. Race discrimination became illegal in the US about forty years ago. The list of protected categories has expanded greatly, and now it is widely considered immoral to discriminate on any grounds unrelated to the job. Several states and almost one-hundred local governments have prohibited employers from discriminating on the basis of “gender identity.” This does not, however, remove signs from bathroom doors. For example, the Minnesota Supreme Court was asked to decide whether Minnesota’s law, which protects transgender employees, permitted an employer to forbid the use of the women’s restroom to an employee who had transitioned from male to female. The Court decided the employee had no discrimination claim based on her transgender status. It ruled that the law was not intended to overturn the “cultural preference” for sex-segregated facilities. Similar reasoning justified separate bathrooms for different races once upon a time.

In its ruling, the Court subordinated another principle that we value highly: medical privacy. We consider it improper (and unlawful) for an employer to ask about the medical history of employees unless there is some bona fide need because of the nature of the job requirements, i.e., the vision of airline pilots. Asking an employee in the accounting department about their genitals is probably not a bona fide occupational requirement. And yet, allowing guys into the ladies’ room is definitely not an idea whose time has come.

The medical realities of sex reassignment surgery are important here. There is a popular idea that “sex change surgery” transforms a hypermasculine Arnold Schwarzenegger into a super-feminine Nicole Kidman, or vice versa. There is no such thing. Instead, there are several dozen medical treatments and surgical procedures that can be involved in sex reassignment. These change various primary and secondary sexual characteristics. The choice of procedures varies greatly and may depend on medical and financial health. While many trans people undergo surgery that creates genitals of the opposite sex, most do not. Most female-to-male transsexuals do not have full phalloplasty, as genital surgery for female-to-male transsexuals is much more expensive and the results are often less than compelling. Genital surgery also does not change one’s public appearance or the ability to pass as the opposite sex – mostly a matter of dress and grooming. Mental health professionals use an eight-point test to discuss gender, and often talk about gender being a “social construction” rather than a biological one. Thus, a simple surgical requirement doesn’t pass muster.

As a consultant to large employers on this issue, I have found that while managers often focus initially on medical and legal issues, these disciplines rarely provide satisfactory answers. No sane employer wants to become part of the transgender employee’s medical team or litigate the complex issues of gender transition. At the same time, a business decision must be made about sensitive issues such as bathroom usage. The decision should respect the transgender employee, while also accounting for the concerns of co-workers. The lack of social consensus about gender transition means that there can be no hard and fast rules. Each case must be approached on its own merits. However, while a case-by-case approach sounds reasonable, it can turn into arbitrary and capricious decision-making. This is not good for employers if there is future litigation. There are, however, several general criteria that can be used to point managers in the right direction. For example, co-worker comfort and available accommodations are objective factors that may be useful to managers. One possible option: an employer could host an information session for co-workers to notify them of company policy and expected norms of conduct, announcing that Jane will henceforth use the third floor restroom. Any co-worker who is uncomfortable with that may use another restroom.

The etiquette of modern business is tricky – we want employers to “do the right thing,” but figuring out the “right thing” is often confusing. The increasing occurrence of workplace gender transitions means that many employers, particularly large ones, will likely face such decisions at some time in the future. Transgender employees who transition in the workplace do not expect others to ignore the change, for it is by nature a public event. At the same time, privacy and dignity have their place even in public events. From a sound business policy viewpoint, the private details of the transition should remain private. Like any business decision, workplace transition rules are informed by medical and legal opinions, but primarily based on business considerations of workplace harmony, and the increased productivity and profit that results. Not even Emily Post would disagree with that, I am sure.