Employers of Choice Come to Terms with Choice of Gender

Echelon Business Magazine

October, 2007

As American society increasingly comes to terms with LGBT identity, and coming out is more of an option, more employers are facing diversity challenges from transgender employees. The “transgender” population covers a broad spectrum of identities, including some who permanently transition from one gender to another, as well as those who do not. While the percentage of openly transgender employees in the U.S. corporate world is relatively small, around 0.1%, the percentage of trans people in society is likely ten times that number. This disparity suggests that, as society becomes more tolerant, employers will have even more openly transgender employees, as those who were closeted choose to live their lives more openly. Of course, changing gender isn’t really a “choice” in the traditional sense of the word. That is, the decision to transition from male to female, or female to male, is felt as an urgent, persistent drive that can be put off for a time, but never denied. In the past, many transgender people were advised by therapists and friends to quit their employment, move to another city, and start over. In today’s more tolerant and diversity-friendly environments, however, many transitioning employees choose to stay on the job with the blessing of their employers, particularly as companies that wish to be known as “employers of choice” are adding “gender identity or expression” to their EEO policies.

There is an increasing number of jurisdictions in the US that protect “gender identity or expression” through their employment non-discrimination laws. These include twelve US states with explicit statutes, another dozen with court rulings and administrative regulations on the subject, and slightly under one hundred US cities, covering about three-quarters of the US population. The federal “Employment Non-Discrimination Act” (ENDA) now pending before Congress would prohibit discrimination based not only on sexual orientation, but also based on gender identity or expression. While federal legislation to prohibit discrimination based on sexual orientation was first introduced in Congress in 1974, this year marks the first time in the history of ENDA that it includes gender identity. It is expected to pass Congress, although the question of whether there would be a veto has not yet been addressed. Companies which consider themselves “employers of choice” have also included gender identity in their EEO policies, including over 150 of the Fortune 500 companies. In fact, in order to get a top score on the highly-regarded Human Rights Campaign’s Corporate Equality Index, which measures corporate friendliness towards LGBT issues, companies must include gender identity in their EEO policies, and must also provide transgender training and health benefits. Companies like General Motors, Chevron, Ford, Citigroup, IBM, HP, Bank of America and JP Morgan Chase have all done so. (The full list can be found on the Human Rights Campaign’s website, hrc.org, in the “Workplace” section of the site.) These developments indicate that the “T” portion of the LGBT community is making great strides towards equality in the workplace, though still far behind the rest of the community. The HRC website shows that over 2700 employers, including private employers, non-profits, unions, colleges and universities, have policies on sexual orientation, and over 9000 have domestic partner benefits, but only a little over 400 have gender identity policies.

Gender identity policies are not the end of the story. Transgender people who wish to transition permanently from one gender to another, often known as transsexuals, present a complex diversity challenge, and the adoption of a gender identity policy is not a guarantee that a transgender worker will be free from harassment, discrimination, or other barriers to success. In a number of cases, promised protections failed to materialize in the face of harassment. In one instance involving a well-known Boston law firm, a disapproving employee’s frivolous sexual harassment complaint made a transgender employee’s life so difficult that she left the firm. In another case involving a university in the southern U.S., a co-worker with strong religious objections circulated a petition against allowing the transgender employee to use the bathroom, with the same result. In other cases, transgender employees under the protection of gender identity policies have found themselves unable to use the proper bathroom, to obtain proper company ID or to receive coverage for routine medical care.

Transitioning employees and their employers face a mind-boggling series of problems. There are a myriad of sticky questions that must be decided by managers with little expertise on the subject. These problems can be overwhelming, particularly at a time when transgender employees are learning to live in a different gender, facing misunderstanding, criticism, disapproving looks, ridicule or outright violence at work, in the street, and with family and friends. Though most transgender employees are not experts on labor policy issues, employers often expect them to draft policies and conduct trainings. One of the most difficult questions is which bathroom and dressing room to use, due to the strong cultural preference for sex-segregated bathrooms. There are different ideas about whether it is necessary for a transgender person to have certain medical or surgical procedures in order to use an opposite-sex bathroom or dressing room, and some experts suggest that questions about an employee’s surgical status fall afoul of privacy laws. Another serious problem occurs when health coverage for transgender medical care is rejected by the company’s medical plan. Changing company records to reflect the new name and gender, particularly those records forms required by law, such as Social Security and I-9s, can raise difficult questions. Customer and client-facing positions bring concerns about the effect of trans workers on sales, particularly in conservative or homophobic environments. In the absence of policies covering these types of issues, managers of good will sometimes find themselves floundering in deep waters, driving away talented workers or unintentionally making their lives at work very difficult at the worst possible time.

A few forward-thinking companies, such as Boeing, HSBC, Chevron and Ernst & Young, have created more comprehensive policies to address these needs. Proper gender transition policy requires buy-in from all the departments that may be required to take action: legal, benefits, security, unions, communications and the management suite. Important training decisions must be made. Should the transitioning employee attend? What about religious objections? Should an email be sent out? Should this be part of general diversity training or a stand-alone? What type of questions or comments to the transgender person by co-workers constitutes harassment? Different companies have different working environments, and the answer to these questions for a company specializing in professional services may not be the best answer for a manufacturing company. Most companies, however, wait for transgender employees to raise these questions, essentially engaging transgender employees in a game of “chicken” – forcing transgender workers to guess whether or not their issues will be received well.

The well-publicized case earlier this year of Steve Stanton, a city manager in Florida who transitioned to Susan Stanton, is a perfect illustration of the problem. The city of Largo, Florida had a policy on the books prohibiting discrimination based on sexual orientation and gender identity. Prior to her transition, Ms. Stanton consulted experts on the issue, began to take steps towards her transition while keeping the information private, created a comprehensive, step-by-step transition plan, and fully discussed these steps with the chair of the city Commission. She attempted to limit negative publicity for the city by keeping the information to a small working group of managers. Later, when she was terminated by the city Commission after a highly-publicized public hearing, her actions were cited as a violation of trust. Ultimately, Ms. Stanton decided not sue the city, preferring to spend her energies on her transition, looking for another job and taking care of her family. If the city had previously adopted a policy addressing gender transition issues, this scenario would likely have been far different.

Transgender workplace diversity appears to be an issue whose time has come. More jurisdictions are enacting laws to protect these workers, and more companies are adding policies to ensure that they are diversity friendly. The challenge for the future, however, is less of a legal issue and more one of education. While laws and policies can help, transgender employees are at the leading edge of social change. Those who have never met a transgender person and have only seen the media’s negative images – the vulgar prostitute, the lewd sexual deviant and the dangerous psychotic -- cannot be expected to welcome their co-workers who come out. Employers of choice have taken steps to create policies that address transgender workers’ needs and to provide education and training to co-workers. Eventually, other companies will have to follow their lead, if for no other reason than the increasing number of new laws prohibiting gender identity discrimination.

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Dr. Jillian T. Weiss is Associate Professor of Law and Society at Ramapo College, and principal consultant for Jillian T. Weiss & Associates, a consulting firm which assists Fortune 500 companies and public agencies with transgender workplace diversity issues. She is also the author of “Transgender Workplace Diversity,” available on Amazon.com, as well as the author of a popular blog by the same name.