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Transgender Employees
Even as employers have grown more accustomed to addressing the rights of openly gay and lesbian employees in the workplace, they are increasingly faced with a new population that seeks protection from discrimination: transgender employees. While in the past some people have conflated gender identity with sexual orientation, there is a growing public awareness that transgender people face unique challenges in the workplace. In response, legislatures and courts alike in several jurisdictions have extended existing anti-discrimination laws to transgender people, and some employers have followed suit with changes to their non-discrimination policies. Employers are thus advised not only to familiarize themselves with the current legal landscape for transgender rights, but also to consider the practical implications of such laws on their own efforts to provide an inclusive and non-discriminatory workplace environment for transgender employees. This two-part article will explore the legal landscape and its implications.
Key Terminology
Anyone seeking to address the needs of transgender people must first understand the accepted terminology. Although definitions and preferred terms can vary even among transgender rights groups, 'transgender' is generally used as an umbrella term to refer to people whose gender identity and/or gender expression differs from the sex they were assigned at birth. In turn, gender identity refers to one's innate, personal sense of being male or female, whereas gender expression pertains to one's external manifestation of gender identity, typically expressed through such attributes as attire, hairstyle, behavior, and voice. For transgender people, the birth-assigned sex is different from their own internal sense of gender identity. The process of transition, then, is one in which a transgender person modifies his or her physical characteristics and/or manner of expression to fit the stereotypical norms associated with his or her gender identity. Dealing with transgender employees can present a unique challenge to employers since, unlike other protected categories in which an employee's status tends to be static, a transgender person may still be in the process of transitioning from his or her birth-assigned sex to his or her reassigned gender. Note, too, that transgender does not imply any specific form of sexual orientation, as, for example, a transgender person could be heterosexual or homosexual.
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