Freedom of Gender Expression

Policy FAQ for Employers of Transgender Workers

Progressive employers wish to be supportive of their diverse work force, including their transgender workers.   This FAQ addresses many of the Frequently Asked Questions by supportive employers, addressing issues that sometimes occur in the workplace.  Employers may draw upon these issues and practices for the creation of their own policies.

This document lists:

List of FAQ Topics

EO Policy

Transition Planning

Anonymous Contact

Confidentiality

Communication to Coworkers

Education for Coworkers

Relocation

Time off for Medical Treatment

Dress Codes

Restroom Access

Locker Room Access

Name Change

Gender Marker Change

Benefits

Marital Status

Interviewing

Background Checks

References for former employees

Day of Transition Checklist

Cross Dressing

Frequently Asked Question

EO Policy

What should we include in our EO policy to protect transgender workers?

Issue: In some workplaces, discrimination against and harassment of transgender workers can be a problem.  Workers may need to hide part of themselves at work.  Workers who transition to another gender may be dismissed, harassed, or otherwise suffer discrimination.  Laws in some states and localities prohibit discrimination based on gender identity and expression, but other states and localities do not have such a safeguard.

BCP: Include "gender identity or expression" to your EO nondiscrimination policy.

BCP: Prohibit not only discrimination, but also harassment, in your EO policy or a comparable document.  Ensure that "gender identity or expression" is included in lists of reasons not to discriminate or harass workers.

Transition Planning

How should we plan a worker's transition to a new gender?

Issue: A worker contacts a manager, HR professional, or other coworker and indicates that the worker is transgender and would like to transition to a new gender.  ("Transition" means to live and work full time in a different gender than is traditionally associated with his or her birth sex.)

BCP: Set up a meeting to discuss the workers need to transition.  Include the appropriate HR generalist, possibly the Director of Diversity*, and the worker's immediate manager.  (If the worker is not yet comfortable including his or her manager, have a first meeting just with HR.)  [* The Director of Diversity refers to a manager in HR whose responsibilities are focussed primarily on Diversity, or to the person most centrally responsible for Diversity in the enterprise.]

BCP: The worker must decide whether, and when, to transition on the job.  The employer will be as supportive as possible, including planning, time for medical appointments, and discussion of issues and potential solutions.  The worker will be given as much time as he or she feels is necessary to decide whether or when to transition.  Only when the worker makes the decision to transition will plans be made for the transition.

BCP: When a transition is requested, the transition will be planned.  HR, the workers immediate manager, the worker, and any other stake holders may be involved in the transition planning.  The plan might address

BCP: Some workplaces consider a gender transition to be "no big deal."  In such workplaces, a gender transition may be as simple as the manager agreeing to the transition, and updating computer and HR records on the day of the transition.

Anonymous Contact

How should we respond when we are contacted by an anonymous transgender worker?

Issue: A transgender worker contacts a manager, HR professional, or other coworker and indicates that the worker is transgender.  The contact comes from an anonymous e-mail address, such as a Hotmail account, and the individual does not wish to disclose their identity, for fear of repercussions on the job.

BCP: Assure the worker that company policy forbids discrimination for gender identity or expression, and that their will be no repercussions if the employee comes directly to you or to HR.  If you are not in HR, contact the Director of Diversity to discuss the situation.  The Director will suggest that the worker contact the Director directly.  Give the Director's email address and telephone number to the anonymous worker, and urge the worker to contact either the Director or yourself to confidentially discuss the employees transition.

Confidentiality

Should we consider being transgender a confidential matter?

Issue: Workers who are transgender usually consider their transgender status to be private.  This may apply to transgender workers who do not plan to transition, to those who are considering a future transition, or to those who have transitioned in the past.  Of course, when a worker transitions on the job, their current coworkers will be aware of the workers transgender status.

BCP: The transgender status of a worker is considered confidential, and may not be disclosed without consent of the worker, or by court order.

Communication to Coworkers

How should we communication the news of a transition to coworkers?

Issue: When a worker transitions on the job, coworkers need to be aware of the change, preferably in advance.  This is to avoid surprise, use of the old name and pronouns, or confusion about company policy.

BCP: Approximately 2-3 weeks in advance of the transition date, a written announcement is sent by a high ranking manager to all workers reporting to that manager.  The announcement should come from the highest level manager whom employees know well enough to relate to, who is ideally based in the same location as the transgender worker and/or the majority of coworkers.  (This person will be referred to here as the "GM".)  The announcement should inform all workers of the change, the workers new name, and the date of the change.  It should affirm company policy supporting the transition, and show strong support from the GM for the worker.  It should state that, effective on the specified date, the employee should be treated in all aspects as a woman (or, if transitioning from female to male, as a man.)  The new announcement should make a point of using the pronouns appropriate to the new gender, as in "Please welcome her as you would any other woman."  Depending on the wishes of the transgender worker, it may be appropriate to offer the workers willingness to answer coworkers questions, as in  "If you have any questions about her upcoming gender transition, please feel free to ask Ms. Smith."  It may be appropriate to stress the workers skills, experience, and continued ability to do his/her job.

BCP: Approximately 2-3 weeks in advance of the transition date, hold a meeting of all workers in the area.  (This may be part of a regularly scheduled department meeting.)  In this meeting, the GM will make the announcement.  The announcement should cover the same information in the BCP above.  Give the transgender worker the choice of whether to be present at this meeting.

Education for Coworkers

Should we educate our workers so they will know what to expect?

Issue: Many coworkers have never met a transgender person, and do not understand the need to transition.  They may have misconceptions about a transition or about company policy.  This can lead to inappropriate behavior, such as use of improper names and pronouns, fear of the unknown, or even harassment or discrimination.

BCP: Lead by example.  Use the new name and pronouns in all official and unofficial communication.  Make it clear that the transition is "no big deal" and that work will continue as before.

BCP: Host a "Transgender 101" education workshop for HR, for management, and/or for coworkers.  Contact a local transgender educator, consultant, or therapist to locate a suitable workshop presenter.  The workshop should run 1-3 hours (90-120 minutes is a good length) and be held in person.  This may be part of the department meeting in which the announcement is made, or it may occur shortly thereafter.  The workshop should occur before the transition date.

Relocation

Should we relocate a transitioning worker to a new location?

Issue: In order to preserve confidentiality, some transgender workers may prefer to be relocated to a new work location where they are not known to be transgender.  While standard practice in the past, such relocation is currently rarely needed.

BCP: Ensure that the worker's current work environment is sufficiently supportive that relocation is not necessary.

BCP: If the worker prefers to relocate, facilitate this relocation to the extent permitted by business needs.  Relocation may be either a transfer to another location in the same city, or may involve relocation to a new residence address, depending upon the situation.  Treat this relocation as you would any other business related relocation.

BCP: If the worker relocates, take care to preserve confidentiality.  Only the workers new immediate manager need know of the workers transgender status.

Time off for Medical Treatment

Will medical visits impact the work schedule?

Issue: Transgender workers are required to undergo a number of medical treatments to support their transition.  These may include:

Many of these treatments can occur in the evening or using existing sick-leave or disability policies. In some cases, the existing policies may not be flexible enough.

BCP: Provide sufficient flexibility to meet the workers needs for appointments.  These may be treated as sick leave, or by using flex-time, the worker may make up time as needed.

BCP: Where possible, after laser treatments, permit the worker to work from home for a few days after each treatment, while the face heals.

BCP: Time off for surgical procedures is treated the same as other scheduled medically necessary procedures.

Dress Codes

Will my transgender worker need accomodation for our dress code?

Issue: Some employers specify a dress code that is different for men than for women.  Workers who are transitioning are required, prior to surgery, to assume the role for their new gender.  This process is known as the Real Life Experience.  Part of that experience is dressing appropriately for the new gender role.

Since the medical processes take time, there may be some elements of gradual transition in their appearance.  For example, when piercing ears, the starter studs must be kept in place for 6 weeks, which may be noticed when a male-to-female worker has not yet transitioned.  A worker who has not yet completed electrolysis may have visible facial hair at times.

BCP: Allow enough flexibility in the dress code to accommodate transition from one gender to the other.

BCP: Revise the dress code to avoid sex-specific requirements.

Sample Policy: "A transitioning employee's attire should remain professionally appropriate to the office in which they work and the job they hold.  The same dress codes and rules for behavior apply to transgendered as to other employees.  If, as a manager, you are concerned about the appearance your transgendered employee will present when she or he starts coming to work in the other gender role, ask for a picture of her or him in professional attire.  If you still have concerns, these should be addressed with your employee.  If she or he dresses or behaves inappropriately, this issue should be dealt with the same way it would be with any other employee."  [AMR]

Restroom Access

What restroom will he or she use after the transition?

Issue: Transgender workers need the same access to restrooms as other workers.  After transition, a coworker may be surprised at the transgender worker's use of the new restroom.  Coworkers may be even more surprised if the transgender worker continues to use the old restroom.  If a worker is required to use a separate restroom, such as a distant single occupancy restroom, productivity, professionalism, and confidentiality may be affected.  OSHA rules require that all workers have unlimited convenient access to restrooms.

Few localities have laws governing restroom access.   Legal case law supports the employer's right to designate restroom use, even if employees cannot agree.  For example, an employer may designate that a transgender worker uses the new restroom, and a coworker who objects may be accommodated by designating a different restroom for the objecting coworker.  [Cruzan vs Davis, 2002, federal appeals court, Minnesota.]

BCP: Transgender employees should use the restroom matching the gender currently presented.  ("The Principle of Least Astonishment.")

BCP: When a transgender employee transitions, s/he will begin to use the restroom matching his/her new gender, effective on the day of transition.

BCP: If a coworker objects the the transgender worker's use of the new restroom, HR and management should make a strong statement of support for both the transgender worker and the coworker to use the restroom without interference.

Sample Policy: "Individuals are to use the restroom facilities corresponding to the gender in which they are presenting." [Avaya]

Locker Room Access

We have a locker room. What should we do?

Issue: Access to situations involving disrobing in the presence of others can be uncomfortable for transgender workers who have not completed surgery, and for their coworkers.  While it is rare for a pre-operative transsexual to want to disrobe in the presence of others, it may be required in some workplaces.  All employees should have access to facilities intended for use by all employees.

In general, locker room situations are best handled on a case-by-case basis.  Solutions should be safe, convenient, and dignified for all workers.

BCP: Individual showers and changing areas provide privacy to each worker when changing.

BCP: Certain times of day are designated for use of the locker room by the transgender worker.

BCP: The transgender worker will use a separate locker room, such as a management room.

Name Change

Will the worker's name change? Should we update our records?

Issue: When a transgender worker transitions, it is usually appropriate to use a new name for the worker.  Written documentation, including e-mail, workplace name tags, photo ID, org charts, computer accounts, and HR records should also be updated with the new name.  The worker will usually undergo a legal name change, which may occur a few months after the transition.

BCP: Update all visible references to the employee's name (especially e-mail, photo ID, and workplace signs) on the day of transition.  Update all references, including HR, company directory, and business cards, as soon after transition as practical.  Any remaining references to the old name must be updated immediately after the legal name change.

BCP: If company policy requires visibility of the full legal name, consider revising the policy.  Many employees are known by nicknames and are difficult to find by their full legal name.

BCP: If  your workplace permits the use of nicknames, treat the worker's new name as a nickname temporarily, until the legal name change is complete.

Gender Marker Change

Should we change the "M" to an "F" in our records?

Issue: HR and health care databases usually include a gender marker designating the worker as "M" or "F."  This gender marker is confidential but is visible to HR, benefits, and payroll.  When a worker transitions, a change to the gender marker is appropriate.  Medical care available to the worker may be affected by the gender marker. 

BCP: Change the transgender worker's gender marker in HR and related databases as soon as possible after transition.  In no case may the old gender marker remain after completion of sex reassignment surgery.

Benefits

Do we need to update our health benefits coverage?

Issue: Certain medically necessary procedures, (such as hormones and sex reassignment surgery,) required for sex reassignment, may be excluded from employer provided health care plans.  Additionally, certain cosmetic procedures (such as electrolysis) may be necessary for success in the new gender role.

BCP: Medically necessary procedures, consistent with the Harry Benjamin Standards of Care (
http://www.hbigda.org/) should be covered on company designed medical, mental health, and pharmacy plans, at a comparable level to coverage for similar procedures for other workers.

For more information about Transgender Health Benefits, including projected costs, see the TAW Transgender Health Benefits page.

Marital Status

What if the worker's spouse is covered as a beneficiary?

Issue: Transgender workers may be married before their transition.  Transition or surgery does not necessarily terminate a legal marriage.  In addition, some states permit same-sex marriages by post-operative transsexuals.  It is possible that a transgender worker will have a legal spouse of the same gender, and this spouse may be a beneficiary in the HR and health care database.  This may be true even in jurisdictions that do not usually permit same-sex marriages.

BCP: Permit designation of a lawful spouse, of either sex, as beneficiary and on company health plans.

Interviewing

If I suspect a job candidate is transgender, can I ask?

Issue: It is unlawful to ask a job candidate their race or their gender.  When interviewing a transgender candidate, you may suspect that he or she may be transgender.  If the initial interview occurs over the telephone, you will only hear the candidate's voice and not see the person: this may lead you to suspect the person is of a different gender than their name would imply.  (For example, a post-operative transgender woman may sound like a man over the telephone.)

BCP: If the candidate volunteers this information, you may discuss it.  Otherwise, you should refrain from discussing it or from forming opinions based on this assumption.

BCP: Company policy forbids discrimination based on gender identity or expression.  Whether or not the candidate is a man, a woman, or is transgender, the candidate must be evaluated on qualifications and ability to do the job.

Background Checks

When checking on the background of a job candidate, a name with a different gender comes up. What should I do?

Issue: Transgender job candidates who have already transitioned and changed their name may have worked, gone to school, or established credit in their old name.  It is possible that a background check, or a call to a reference, may be met with a person who knew the candidate under the old name.  If your employment application requests previous names the candidate worked under, a transgender candidate may feel unsafe disclosing their old name.

BCP: If the history can only be located under the old name, recognize that company policy forbids discrimination based on gender identity or expression, and that the use of a different name occurs for many reasons.  Treat the candidate exactly as you would any other candidate whose name is an exact, or similar, match.  If there is any question as to whether the person located is the same person, use SSN to verify identity, or confirm with the candidate that the other name is the same person.

References for former employees

A transgender worker asks me to be a reference, and wants me to use a differet name than the name I knew him as. Should I?

Issue: A coworker may be asked to give a reference for a former employee who has transitioned or changed name.  The name the coworker knew the employee as may not match the new name expected by the person checking the reference.

BCP: If a former coworker asks you to give a reference, and explains that they have transitioned and have a new name, do not disclose the coworker's transgender status or old name.  Use the new name and new pronouns when giving the reference.  If asked if the coworker used the old name, you may confirm the old name.

Day of Transition Checklist

See the Transgender at Work checklist at http://www.tgender.net/taw/tggl/checklist.html

Cross Dressing

What if a worker tells me he is a cross dresser, but does not want to transition?

Issue: Some transgender workers live as women some of the time and as men some of the time, in effect cross dressing on a part time basis.  This may be a transsexual who has not yet transitioned to full time, or a cross dresser who is content with a part time gender expression.  Such workers fear that discovery of their cross dressing, even when on personal time, may lead to discrimination or harassment at work.

BCP: Cross dressing off the job is not related to a workers job performance.  A person who cross dresses off the job may feel safe if his or her employer's EO policy prohibits discrimination or harassment based on gender identity or expression.  (Usually the "gender expression" part is applicable to part time cross dressing.)

BCP: A worker who wishes to cross dress part time on the job is different from a worker who needs to transition on a full time basis.  Requests for part time cross dressing on the job should be addressed on a case-by-case basis.  These requests are rare and are often a step toward a full time transition.

This page Copyright (c) 2005 by Transgender at Work. All rights reserved.