Volume 19 Number 48
Monday, December 10, 2001
Page 1321
ISSN 1523-2832

Lead Report, Bureau of National Affairs, www.bna.com

Transgendered Employees

When Harry Becomes Sally: Transgender Issues Increasingly Confront Employers

In 1997 Mark Horton informed his employer, Lucent Technologies, that he would like to come to the office as Mary Ann. The technology company not only accepted that Horton would sometimes present himself as a woman, but also became the first employer to amend its nondiscrimination policy to include gender identity.

An information-technology worker specializing in e-mail engineering and support, Horton spent the last three years at Lucent alternating between Mark and Mary Ann, before taking early retirement this past July. She said she was never harassed or discriminated against because of her gender switching.

"The general reaction was: 'What's the big deal?' " Horton, who now considers herself a woman full time, told BNA.

But not all transgendered employees find the path to a new gender paved with such organizational support.

"They face a variety of different forms of bias," Eric Matusewitch, associate director of the New York City Equal Employment Practices Commission, said. Transgendered workers are refused employment, harassed on the job, or fired because they have changed genders, he said.

When transgendered employees are open about their status, "there are high incidents of co-workers creating a hostile work environment," said Robert Heiferman, a partner in the White Plains, N.Y., office of the management law firm Jackson Lewis. "It's certainly a problem," he said.

Still, the majority of employers have yet to have a transgendered worker on their staffs. "It's relatively rare," Heiferman allowed.

So why should employers be concerned?

"A growing number of people are in fact becoming transgendered," Matusewitch said. "Employers have to face the issue."

"There are a lot of issues and it's a fairly new concept in many workplaces," Kim Mills, education director at the Human Rights Campaign, in Washington, D.C., told BNA.

Mills explained that in the past, employees that were going to transition from one gender to another tended to quit their jobs, undergo the process, then find a new job. Now, she explained, many are saying, "I don't need to quit my job to do this."

Transsexuals and Cross Dressers

The term transgendered covers several types of people, including transsexuals, who have a desire to change their gender and usually go through some type of transition from one sex to the other; and cross dressers or transvestites, who derive pleasure from dressing in clothing typically associated with the opposite sex.

Because cross dressers rarely feel the need to exhibit this behavior in the workplace, employees transitioning from one sex to another are the main transgender issue facing employers, said Janis Walworth, director of the Center for Gender Sanity, in Westchester, Calif., and author of Transsexual Workers: An Employer's Guide.

According to Walworth, an estimated 1,000 to 2,000 transsexual surgeries are performed on Americans each year, and many of those who transition attempt to do so while keeping their current jobs. "So it's safe to assume that several hundred transsexual workers raise the issue of transitioning in the workplace each year," she said.

"Transgendered workers must usually cope with a great deal of ignorance at all levels in their organizations," Walworth said. Managers are often afraid that a transgendered worker will disrupt the workplace and cause clients or customers to take their business elsewhere. "Not uncommonly, transsexuals lose their jobs because of these fears, even when co-workers and clients have been openly supportive," Walworth said.

Employers can make life so difficult for transgendered workers that they finally quit, Walworth said. "Some [employers] allow transsexuals to transition on the job but offer no assistance, take no action against harassment, and make no effort to provide co-workers with information."

On the other hand, she said, "many employers have learned to handle transition on the job without a lot of fuss."

In most successful cases, Walworth said, the transgendered worker meets with a manager and HR representative to work out the details and timing of the transition. Usually an announcement is made to other employees the transsexual deals with daily. Training may be made available to help co-workers understand what will happen and to answer their questions, Walworth said.

State and Local Protection

While transgendered workers face a tremendous amount of workplace bias "simply because of being transgendered," an increasing amount of legal protection is at their disposal, said Jennifer Levi, a founding member of the Transgender Law and Policy Institute.

Levi, currently a staff attorney with the Boston-based Gay and Lesbian Advocates and Defenders, said that legal protection for transgendered workers "varies tremendously depending on the jurisdiction."

Last month Denver became the latest locale to add transgendered individuals to those protected by the city's anti-discrimination law. The measure extends protections to transgendered persons in the areas of employment, as well as housing and public accommodations (19 HRR 1214, 11/12/01).

More than 30 jurisdictions have passed similar non-discrimination measures. Minnesota has enacted a law providing transgender protection, and the Connecticut Commission on Human Rights and Opportunities has interpreted that state's law to provide protection for transgendered individuals. The cities of Seattle, Atlanta, and New Orleans, among others, have enacted comparable protections. Courts in New York, New Jersey, and Massachusetts have interpreted state sex discrimination laws to include transgendered people.

Restroom Anxiety

One persistent problem facing transgendered workers is which bathroom they should use.

The Minnesota Supreme Court ruled Nov. 29 that an employer's designation of employee restrooms based on biological gender did not constitute sexual orientation discrimination. In the case, Julienne Goins, born Justin Travis Goins, had presented herself as a woman since beginning to take female hormones in 1994 and had had her sex change documented by a state court. Her employer, however, refused to allow her to use the women's restroom after female co-workers had expressed concern. Reversing a state appeals court ruling in favor of Goins, the Minnesota high court ruled that the transgendered employee failed to prove that she was subjected to discrimination (Goins v. West Group, Minn., No. CX-00-706, 11/29/01).

"What bathroom a transgendered employee should use is a very difficult issue for employers," Matusewitch said. Some female employees object to a biological male using the women's bathroom, he noted.

"Workers just get freaked out over the bathroom question," Mills said. She contends that transgendered workers should be allowed to use the restroom of the sex they are currently manifesting.

"Problems tend to arise when people have misconceptions about transsexualism, such as that transsexuals are mentally unbalanced or sexually perverted," Walworth said. When these notions are dispelled through education, she said, "many people can comfortably share a restroom with a transsexual."

A Diversity Topic?

Heiferman called transgender issues "just another element of diversity."

For employers unsure about whether or not to include transgender as a topic in diversity training, Heiferman said, "Why not? I'd always err on the side of being more inclusive than less inclusive."

But a leading diversity expert told BNA that transgendered issues are not a part of most diversity plans. "I haven't heard much talk about that," R. Roosevelt Thomas Jr., founder of the American Institute for Managing Diversity, in Atlanta, said of transgender issues.

"For most people it's a foreign concept," said Howard Ross, president of Cook Ross Inc., a diversity consulting and training firm, in Silver Spring, Md.

He noted that transgendered employees often face objections from co-workers on religious and "moralistic" grounds. "It's going to trigger homophobia in some people," Ross warned.

"It's such a dramatic thing and it's so different," he said. Ross asserted that candid conversations are the key to getting employees to accept a transgendered co-worker.

"It's definitely about education," Mills said. To start, she said, an employee preparing for a transition must have "a very frank discussion" with his or her supervisor. Then the employee and supervisor need to explain the situation to co-workers, Mill said. At this point, she said, the employer must stress its support of the employee and its intolerance for any harassment of that worker.

"The most important thing employers can do is to send a strong message to everyone that top management is supportive of the transsexual's transition," Walworth said. At the same time, she said, "employees must understand that the transsexual is not being given any special privileges."

Employers should stay in close contact with transsexual workers throughout a transition, Walworth said. Include them in planning the steps of their transition at work, she said, and follow up to make sure they are not experiencing harassment or other problems.

In large corporations, training about transgender issues should be part of the broader diversity training offered regularly, according to Walworth. Smaller companies may want to bring in training only when they become aware that they have a transsexual worker, she said.

Little Coverage for Sex Reassignment Surgery

Another issue facing transgendered workers and their employers is insurance coverage for sex-change procedures.

"The cost of treatment is remarkably low," Levi said. "There's no good reason not to cover sex reassignment surgery."

Levi said that challenges to Medicaid exclusions of such procedures have almost always been successful. However, in the private sector, coverage is usually denied.

"The cost is negligible," Horton said. "It's even less than domestic partner benefits."

As for Horton's own workplace transition, she said that she took a very methodical approach to coming out as a transgendered individual.

"I had a lot of one-on-one conversations," Horton said. Initially, Horton met with Lucent's gay, lesbian, and transgendered employee group, who were instrumental in getting the company to add gender identity to its nondiscrimination policy. She also sought out her supervisor and co-workers.

"First I talked to my boss," she said. "From there it just kind of mushroomed."

By Simon J. Nadel

Copyright 2001 by The Bureau of National Affairs, Inc., Washington D.C.