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DOL Policies on Gender Identity: Rights and Responsibilities

Since the Department of Labor's (DOL's or the Department's) earliest years, it has been committed to promoting equal opportunity in employment. This commitment, which has grown     significantly over time, necessarily extends to all DOL employees and applicants for DOL employment. In 2020, the Supreme Court ruled in Bostock v. Clayton County , 140 S. Ct. 1731, that discrimination based on sexual orientation or gender identity constitutes discrimination "because of . . . sex" in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1). On January 20, 2021, President Biden reaffirmed and applied these protections by issuing an Executive Order on Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation. 1

Why do the Department's policies explicitly prohibit discrimination and harassment based on gender identity?

The Department's policies reaffirm DOL's commitment to fair treatment of, and equal opportunity for, all people. Policies prohibiting discrimination based on transgender status, gender identity, or gender expression create the reasonable expectation of an environment where all employees and applicants for employment are evaluated by their performance, rather than by their gender identity or expression or others' perceptions thereof. 

Further, DOL's policies are consistent with the policies of other Federal agencies, such as the Equal Employment Opportunity Commission (EEOC), Department of Justice (DOJ), and Office of Personnel Management (OPM), including OPM's Guidance Regarding the Employment of Transgender Individuals in the Federal Workplace . 2 DOL's policies also comport with Executive Order 13672 and 13988, which further prohibit discrimination in the civilian federal workforce on the basis of gender identity.

Discrimination, including harassment, based on gender identity or expression is sex discrimination. In 2020, the Supreme Court in Bostock v. Clayton County affirmed this interpretation, cementing protections for transgender and non-binary workers.

Studies have shown that transgender and non-binary people face disproportionate amounts of discrimination in all areas of life, notably in employment. A 2015 study by the National Center for Transgender Equality indicated that 77% of transgender respondents who had a job in the preceding year reported taking steps to avoid mistreatment at work, such as hiding their gender transition at work or quitting their job. 3 In this same study, nearly half (47%) said they did not ask their employer to refer to them with correct pronouns (such as he, she, or they) out of fear of discrimination. Non-binary respondents (66%) were nearly twice as likely to avoid asking to be referred to by their correct pronouns compared to transgender men and women (34%). These statistics underscore the   importance of the Department creating a safe environment for all of its employees.

Employees' and Applicants' Rights

Who is protected from discrimination based on gender identity or expression? Discrimination based on gender identity or expression can affect anyone. Policies barring these forms of discrimination not only protect those who openly identify as transgender, femme, masc, or non-binary, but they also protect anyone who might express their gender in any way that does not conform to preconceived notions about how people of a particular gender should express themselves. Over 30 years ago, the Supreme Court in Price Waterhouse v. Hopkins ruled that these policies 4 also protect  people against sex stereotyping – for instance, women who some people think are "too masculine" or men who some people think are "too feminine."

DOL policies barring discrimination and harassment on the basis of sex protect employees and applicants for employment from being harassed, denied employment or promotion, or otherwise subjected to adverse treatment because they do not conform to societal gender expectations.

What are my rights under DOL's gender identity policies? DOL employees and applicants for employment have the right to experience a workplace free of discrimination, including harassment. If you believe you are being subjected to harassing conduct, please contact your Agency Workplace Equality Compliance Office (WECO), which processes allegations of harassing conduct in accordance with DOL's policy and procedures with the goal of stopping the harassing conduct before it becomes severe or pervasive, and a violation of the law. If you believe that you have experienced unlawful disparate treatment or a hostile work environment (harassing conduct that is severe or pervasive), you should contact the Civil Rights Center (CRC) , which is responsible for ensuring nondiscrimination within the Department and processing discrimination complaints in accordance with the Federal Sector Equal Employment Opportunity (EEO) Complaint Processing Regulations, found at 29 C.F.R. Part 1614. A complaint filed with your Agency WECO is not the same as filing a complaint with CRC. The two processes are distinct and serve different purposes. The mission of your Agency WECO is to serve as an agency-support mechanism, including by advising agency managers on EEO issues and preventing harassing conduct from becoming so severe or pervasive as to constitute a hostile work environment. The mission of CRC is to serve as a neutral agency within the Department and to promote justice and equal opportunity by acting with impartiality and integrity in enforcing various civil rights laws.  CRC's Office of Internal Enforcement (OIE) administers the Department's EEO program by counseling, facilitating mediation, investigating, adjudicating, and remedying complaints of alleged discrimination filed by DOL employees and applicants for DOL employment. CRC may be reached by phone at (202) 693-6500 (voice) or (800) 877-8339 (Relay), or by e-mail at [email protected].

Workplace Equality Compliance Office (WECO)

When to contact.

  • Contact if you believe you are being subjected to harassing conduct 5
  • Initial incidents that are unwelcome and unprofessional and based on a protected category
  • Conduct that may violate the harassing conduct policy, is not necessarily a violation of the law and would rise to the level of a Hostile Work Environment that is severe or pervasive
  • Support agency, including in compliance, settlement/alternative dispute resolution (ADR), and training
  • Advise and guide agency managers on EEO issues
  • Inquire into allegations of harassing conduct
  • Prevent harassing conduct from becoming severe or pervasive
  • Cessation of harassing conduct
  • Reassigning or relocating alleged harasser/victim
  • Altering work hours or telework schedules to avoid contact
  • Any interim measures must not unduly burden alleged victim
  • Contact if you believe that you have experienced unlawful disparate treatment or a hostile work environment (within 45 days of the alleged action)
  • Unlawful Disparate treatment includes the denial of terms, conditions, and privileges of employment, such as, termination, suspension, denial of leave, poor performance appraisal, nonselection/nonpromotion, or denial of a reasonable accommodation
  • "Hostile work environment" means harassing conduct that is severe or pervasive; it can also mean a single egregious incident occurred.
  • Egregious and offensive conduct
  • Retaliation for opposing discriminatory or harassing conduct
  • Single use of a highly charged epithet that dredges up the history of discrimination
  • Maintain neutrality; subject to oversight from the EEOC
  • Authorized to order findings of discrimination against the Department, including ordering corrective relief
  • Promote justice and equal opportunity
  • Administer Department's EEO program
  • Non-pecuniary damages attributed to emotional pain and suffering
  • Pecuniary damages attributed to losses caused by discriminatory conduct
  • Attorney fees
  • Restoration of leave
  • Other forms of equitable relief

Responsibilities of Managers and Supervisors

Communicate clearly. Managers should talk and set a good example with employees about what type of behavior is lawful and appropriate in the workplace. They should make clear that employees should respect the gender identity and expression of all coworkers and customers. To that end, managers should discuss appropriate behavior with employees like using correct pronouns for coworkers and customers and speaking up if transgender and non-binary coworkers are demeaned because of their gender identity or expression. Managers should also make clear what consequences employees will face if they violate the law, up to and including removal.

Encourage your staff to report attempts at mockery, harassment, or otherwise prohibited conduct, including misgendering.

Lead by example. The most effective way for a manager to set the tone in the workplace is to lead byexample. Treat transgender and non-binary employees, customers, and others with whom you may come in contact with dignity and respect. If an employee or customer approaches you regarding being transgender or non-binary, or if other employees learn that a co-worker, customer, or other person with whom they interact is transgender or non-binary, there are many ways in which your words and actions can lead to a welcoming and safe atmosphere. Some specific examples:

Names and Pronouns. Refer to each person by the name and the pronoun(s) by which the person wants to be referred . If you don't know, ask in a tactful and respectful way. For example, you can say, "what pronouns do you use?" or you can introduce yourself with the pronouns you use, which may prompt someone to share the pronouns they use. Continued intentional misuse of a person's name and pronouns – also known as misgendering – may breach the person's privacy, may put them at risk of harm, and in some circumstances, may be considered harassment.

Inclusive Language: Whenever possible, use gender-neutral language to avoid assumptions about employees' sexual orientation or gender identity. For instance, use words like "spouse" instead of gender-specific terms like "husband" or "wife," or the singular third-person pronoun "they" instead of "he or she" when referencing a hypothetical or anonymous person, or when you don't know the individual person's pronouns. In addition, be mindful in referring to individuals' identity, gender, partners, and relationships. Someone's sexual orientation or gender identity is one aspect of their identity, but not what may fully define them. 

Confidentiality and privacy .A person's transgender or non-binary status should be treated with sensitivity and confidentiality, just as one would treat any other personal life experience. A transgender or non-binary employee may or may not want to discuss their gender identity or expression with co-workers. Respect the wishes of the employee.

Even if a transgender or non-binary employee has disclosed their gender identity or other personal information, such as information about their transition, they still may wish to keep other personal information private. Respect the wishes of the employee, and do not share information about the employee's status without their permission. In addition, remember that medical information about individual employees is legally protected, and disclosure should be limited. Do not ask the employee questions about their medical information or treatment unless such questions are necessary to address any workplace issues that may arise with the employee's medical plans.

Regardless of the level of disclosure that a transgender or non-binary employee is comfortable with, do not permit employees to engage in gossip or rumor-spreading about any employee and especially not about personal issues like gender identity or expression.

Train employees . Managers should offer resources for employees to educate themselves about treating all of their colleagues, customers, and others with dignity and respect. Trainings enable employees to ask questions in a moderated space and are an effective way of preventing discrimination. Trainings should inform employees that it is their responsibility to report acts of discrimination or harassment and to address derogatory language, jokes, and behavior.

Provide support . Managers and supervisors should also provide support for transgender and non-binary employees in other ways:

Dress and appearance. As part of a transition process, an employee might alter their clothing style. Additionally, their physical appearance may change. Agencies should not maintain dress codes that restrict employees' clothing or appearance on the basis of gender. Dress codes must not interfere with a person's expression of gender identity. Transgender and non-binary employees must be allowed to comply with dress codes in a manner consistent with their gender identity or gender expression.

Restroom access. The Department is guided by OSHA on the use of sanitary and related facilities by transgender and non-binary employees in the federal workplace. 6 OSHA's guidance says employees should be permitted to use the facilities that correspond with their gender identity. That decision should be left to the employee to determine the most appropriate and safest option for them.

Employees should not be required to undergo, or provide proof of, any medical procedure to use facilities designated for use by a particular gender. Under no circumstances may an agency require an employee to use facilities that are unsanitary, potentially unsafe for the employee, or located at an unreasonable distance from the employee's work station. To ensure equal access, all single-stall restrooms in buildings or facilities controlled by DOL should be accessible to all employees and have gender-neutral signage.

Identity documentation. Consistent with the Privacy Act, the records in an employee's Official Personnel Folder (OPF) and other employee records (pay accounts, training records, benefits documents, etc.) should be changed to show the employee's updated gender marker and legally changed name, consistent with the employee's gender identity. Employees should also be permitted to change any identity documentation, such as ID badge, email account, etc. as well upon obtaining a legal name change.  Less formal identity documentation such as business cards or name plates may be changed without legal documentation. 

To initiate a name change, employees will need (1) a copy of their driver's license or other legal photo identification and (2) their social security card, or confirmation from the Social Security Administration that their name has legally been changed, and initiate the name change action with the Office of Human Resources. Employees are encouraged to talk with their employee benefits specialist in the Office of Human Resources or review the guidance about name changes on LaborNet.  

Sick and medical leave. Employees receiving medical treatment as part of their transition may use sick leave under DOL regulations. Employees who are qualified under the Family Medical Leave Act may also be entitled to take medical leave for gender-affirming care.

During the hiring process, hiring managers and supervisors should be sensitive to the possibility that applicants may have updated their legal documents to reflect their gender identity . The name and gender marker on the application should correspond with the person's current usage or legal status; however, background or suitability checks may disclose a previous name that is typically associated with a particular gender that appears different from the one the applicant is currently expressing. In such cases, hiring managers should tactfully ask whether the applicant was previously known by a different name and confirm with the applicant the name and pronouns that should be used when checking their references.

Should you have further questions, please contact CRC at (202) 693-6500 (voice) or (800) 877-8339 (Relay), or by e-mail at [email protected].

Gender Identity: Key Terminology 7

What is the difference between sex and gender? Sex ( i.e., male, female, or intersex) is assigned at birth based on a combination of a baby's biological characteristics, including chromosomes, hormones, and reproductive organs, and is originally documented on a person's birth certificate. The World Health Organization  defines gender as the "socially constructed roles, behaviors, activities, and attributes that a given society considers appropriate" based on sex.

Agender: An identity under the nonbinary and transgender umbrellas. Some agender individuals have no gender identity, although some define agender as having a gender identity that is neutral.

Bigender: An identity under the nonbinary and transgender umbrellas. Bigender individuals identify with more than one gender.

Cisgender: A person whose gender identity matches with the sex they were assigned at birth. 

Gender expression: How a person represents or expresses one's gender identity to others, often through behavior, clothing, hairstyles, voice, or body characteristics. All people have a gender expression.

Genderfluid: Refers to an identity under the nonbinary and transgender umbrellas. Genderfluid individuals have different gender identities at different times. A genderfluid individual's gender identity could be multiple genders at once, and then switch to none at all, or move between single gender identities. For some genderfluid people, these changes happen as often as several times a day, and for others, monthly, or less often. 

Gender identity: A person's internal sense of being male, female, or something else such as agender, binary, gender fluid, gender nonconforming, genderqueer, or nonbinary. Since gender identity is internal, one's gender identity is not necessarily visible to others. All people have a gender identity.

Gender nonconforming (GNC) or Genderqueer: Terms for people whose gender identity and/or expression is different from societal expectations related to gender.

Gender-affirming care: An inclusive term for treatments and procedures that help an individual align their physical and/or other characteristics with their gender identity, often called transition-related care.

Intersex: Refers to a person who is born with sexual or reproductive anatomy that does not fit within the sex binary of male or female, encompassing a variety of sex expressions. 

LGBT or LGBTQ: Shorthand for lesbian, gay, bisexual, transgender, and queer people.

Nonbinary: A term used by people who identify as neither entirely male nor entirely female. This can include people who are agender, bigender, genderfluid, gender nonconforming, and genderqueer, among others. Some nonbinary people identify as transgender, while others do not.

Pronouns: Terms used to substitute a person's name when they are being referred to in the third-person. Some common pronouns include he/him/his, she/her/hers, and they/them/their(s). A person's gender should not be assumed based on their pronouns. 

Queer: An umbrella term which embraces a variety of sexual preferences, orientations, and habits of those who are not among the exclusively heterosexual and monogamous majority. Although the term was once considered derogatory and offensive, the community has reclaimed the word and now uses it widely as a form of empowerment. Younger generations tend to use the term "queer" for reasons such as the fact that it does not assume the gender of the queer person or the gender of any potential romantic partners, and/or in order to make a political statement about the fluidity of gender. 

Sexual Orientation: A person's identity in relation to whom they are attracted to. All people have a sexual orientation. Sexual orientation, gender identity, and gender expression are distinct components of a person's identity. Sexual orientation should not be confused with a person's gender identity or gender expression.   

Transgender: A broad term for people whose gender identity or expression is different from those typically associated with their sex assigned at birth. "Trans" is shorthand for "transgender." Note: Transgender is correctly used as an adjective, for example: "transgender people," "people who are transgender," "a woman who is transgender," etc. However, "transgenders" or "transgendered" are incorrect and disrespectful.

Transition: A broad term commonly used to refer to the ongoing process by which a person alters components of their gender expression and/or other personal characteristics to better align with their gender identity. A person's transition may or may not include a combination of social changes (e.g., name, pronouns, appearance and/or clothing), legal changes (e.g., legal name and/or legal gender markers), and medical changes (e.g., gender-affirming hormone therapy and/or surgeries). Note: Not all transgender and/or non-binary people want to transition or are able to access the resources necessary to do so. However, regardless of whether, how, or when a person takes any, some, or all of these actions, their gender identity is valid and should be respected and affirmed.

Transphobia: The hatred or fear of transgender, nonbinary, and gender nonconforming people. This sometimes leads to acts of violence and expressions of hostility. Transphobia is not confined to any one segment of society and can be found in people from all walks of life.

Two-Spirit: Contemporary umbrella term that refers to the historical and current First Nations people whose individual spirits were a blend of female and male spirits. This term has been reclaimed by Native American LGBTQ+ communities in order to honor their heritage and provide an alternative to the Western labels of gay, lesbian, or transgender.

1 Exec. Order No. 13988, 86 C.F.R. 7023 (2021). 

2 U.S. Office of Personnel Management (OPM), Guidance Regarding the Employment of Transgender Individuals in the Federal Workplace , available at https://www.opm.gov/policy-data-oversight/diversity-and-inclusion/reference-materials/guidance-regarding-employment-of-transgender-individuals-in-the-federal-workplace.pdf

3 National Center for Transgender Equality, 2015 U.S. Transgender Survey , (2015), available at https://transequality.org/sites/default/files/docs/usts/USTS-Full-Report-Dec17.pdf, at 13 & 154.

4 See Price Waterhouse v. Hopkins , 490 U.S. 228 (1989).

5 There is no prescribed timeframe for raising concerns under this Policy and procedures with the Workplace Equality Compliance Office (WECO), although prompt reporting is strongly encouraged.  It is important to understand that it may be more difficult to investigate and address allegations that are aged.  However, the Department will review all allegations in an attempt to stop any harassing conduct, which is the only remedy available under this Policy and procedures. Filing a complaint with an EEO Counselor of the Civil Rights Center (CRC), however, must occur within 45 days of the last alleged incident of discrimination. Any incidents that occurred beyond the 45 days would still be considered under a theory of a hostile work environment, but not as an allegation of unlawful disparate treatment if the conduct affects a term, condition, or privilege of employment.

6 Occupational Safety and Health Administration, Best Practices: A Guide to Restroom Access for Transgender Workers , available at https://www.osha.gov/sites/default/files/publications/OSHA3795.pdf .

7 National LGBTQ Task Force, LGBTQ+ Glossary of Terms , available at https://www.thetaskforce.org/wp-content/uploads/2019/06/Task-Force-LGBTQ-RJ-Glossary-of-Terms.pdf (last visited April 16, 2021).

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Employing Transgender Workers

Editor's Note: On October 1, 2022, the U.S. District Court for the Northern District of Texas concluded that the U.S. Equal Employment Opportunity Commission (EEOC) misapplied the U.S. Supreme Court's ruling in Bostock v. Clayton County, Ga. in its June 2021 technical assistance document on LGBTQ+ workplace discrimination protections. The EEOC's guidance expanded the legal definition of sex discrimination to include sexual orientation and gender identity in employment situations. It stated that workers have the right to use a bathroom that corresponds to their gender identity and the right to be free of harassment, including intentional and repeated use of the wrong pronouns. The EEOC is likely to appeal this ruling and may continue to pursue other litigation regarding the interpretation of Bostock as it relates to employer policies and practices.  See  Federal Judge Strikes Down EEOC's LGBTQ Guidance .

This article focuses on workplace issues related to the employment of transgender individuals in an organization. Among the issues are those that may surface when an employee makes the transition from living as one sex to living as the other.

Overview Background The Legal Framework Organization Policies Workplace Issues Additional Resources Endnotes

The term "transgender" is commonly used to refer to individuals whose gender identity and/or expression is different from their sex assigned at birth or with standard societal expectations of the male and female gender roles. Transgender people may be straight, lesbian, gay, bisexual, or asexual, just as nontransgender people can be. 1

Transgender individuals often suffer discrimination in various aspects of their lives, including employment. This discussion sets forth reasons that employers should be knowledgeable and accommodating toward transgender workers and should tolerate no workplace discrimination against them. The article explains HR's role in helping an organization prepare for and meet its responsibilities in this area.

"Transgender is an umbrella term for persons whose gender identity, gender expression or behavior does not conform to that typically associated with the sex to which they were assigned at birth," according to the APA. "Gender identity refers to a person's internal sense of being male, female, or something else; gender expression refers to the way a person communicates gender identity to others through behavior, clothing, hairstyles, voice, or body characteristics." 2

One of the transgender identities is that of transsexual—a person whose gender identity is different from the individual's assigned sex. "Often, transsexual people alter or wish to alter their bodies through hormones, surgery, and other means to make their bodies as congruent as possible with their gender identities," the APA explains. "This process of transition through medical intervention is often referred to as sex or gender reassignment, but more recently is also referred to as gender affirmation." 3

It is important to note that while the APA website references transsexual people, they also state that, "the term "transsexual" is largely outdated, but some people identify with it; this term should be used only for an individual who specifically claims it."

Statistics on the numbers of transgender individuals are scarce. What is better documented is that many—perhaps most—transgender men and women are targets of discrimination and sometimes violence and hate crimes. Discrimination may be overt, such as denial of access to a workplace restroom, or it may be subtle, such as disapproving glances or privacy-invading questions from co-workers.

In some instances, a transgender person will make the change to the other gender while employed. The means of making such a transition may or may not include medical or surgical procedures, but it will result in the person living as a member of the other sex. In such circumstances, the employer should help the person with workplace concerns during and after the transition and should help the rest of the workforce deal with the transition.

The Legal Framework

Title vii of the civil rights act.

Title VII protects individuals against employment discrimination on the basis of race and color, national origin, sex, and religion; it applies to employers with 15 or more employees. Among the types of employers required to comply with Title VII are private-sector organizations (including employment agencies and labor organizations) as well as state and local governments and the federal government.

Although official rulings on complaints of discrimination against transgender employees have varied over the years, the U.S. Supreme Court ruled on June 15, 2020 that sexual orientation and gender identity or expression are included in the definition of "sex", therefore, employers may not discriminate against transgender individuals in employment. See  What You Should Know: The EEOC and Protections for LGBT Workers .

In addition to the federal interpretations of what constitutes sex discrimination under Title VII, legal protections are emerging for transgender employees at the state and local levels.

State and local anti-discrimination laws

Numerous states and localities across the United States have enacted laws that expressly prohibit employment discrimination based on gender identity and expression. Employees working in those states , regardless of where the employer is headquartered, are protected by those laws.

Patient Protection and Affordable Care Act (Affordable Care Act or ACA)

Section 1557 is the nondiscrimination provision of the ACA which prohibits sex discrimination in health insurance. The law was designed to reform the U.S. health care system by expanding the availability of health insurance, regulating coverage and restructuring health care delivery, including how it is paid for. In July 2012, the U.S. Department of Health and Human Services (HHS) stipulated that the law's prohibition against sex discrimination applies to transgender people.

On May 13, 2016, the HHS Office for Civil Rights issued the final rule implementing Section 1557.

However, on December 31, 2016, the U.S. District Court for the Northern District of Texas issued an opinion in Franciscan Alliance, Inc. et al v. Burwell , enjoining the Section 1557 regulation's prohibitions against discrimination on the basis of gender identity and termination of pregnancy on a nationwide basis. Then on June 12, 2020, the HHS released final rules eliminating anti-discrimination protections based on gender identity in health care and health insurance.

Whether or not Title VII's protections for LGBTQ+ individuals will affect the most recent HHS ruling remains to be seen. The ACA's protections were based on Title IX definitions of sex, not Title VII, but they are related, and more litigation is expected.

Americans with Disabilities Act of 1990

The Americans with Disabilities Act of 1990 (ADA), including changes made by the ADA Amendments Act of 2008 , specifically excludes from its definition of disability "transvestism, transsexualism, pedophilia, exhibitionism, gender identity disorders not resulting from physical impairments, or other sexual behavior disorders." 4 Nonetheless, some transgender individuals may suffer from depression or other medical conditions that could be covered under the law. Employers should consult with legal counsel before making any negative employment-related decisions related to a medical disability of a transgender worker.

State disability discrimination laws

Although the ADA excludes gender identity disorders from its definitions of disability, state disability discrimination laws may be broader and may not contain such exclusions. Employers should check with their attorneys regarding their states' laws on gender identity issues.

Family and Medical Leave Act of 1993

Some treatments and procedures for transgender employees may not qualify for employment leave under terms of the Family and Medical Leave Act (FMLA), but others may. Some that may qualify could include treatment related to gender dysphoria, overnight hospital stays related to sex-reassignment surgeries and continued counseling with a mental health professional. As with all requests for FMLA leave, the employer should follow normal notification procedures and review each medical certification to determine FMLA applicability.

State family and medical leave laws

Some states' medical leave laws may be broader than the federal FMLA. For example, the FMLA does not include domestic partners in its definition of "spouse," but some state medical leave laws do. Employers should know the terms of their states' laws on family and medical leave.  

Global anti-discrimination protections

Several countries have protections in place to prevent various types of human rights discrimination aimed at transgender individuals. For example, in the United Kingdom (UK) the 1999 Sex Discrimination (Gender Reassignment) Regulations are applicable to all stages of employment. Both the UK and Spain allow transgender individuals to change their name and gender on official documents without undergoing surgical changes. In the European Union, a 1996 decision in the European Court of Justice provided workplace discrimination protections for workers undergoing gender reassignment.

South Africa and many states and territories in Australia also prohibit discrimination against transgender people.

In 2006 a group of international human rights experts met in Yogyakarta, Indonesia to outline international rules relating to sexual orientation and gender identity, known as the Yogyakarta Principles . In 2017 additional rules were added to form the Yogyakarta Principles plus 10.

See  Employers in India Expand Inclusion to Cover LGBTQ Employees .

Organization Policies

In light of the various legal protections and legislative initiatives pertaining to transgender employees, employers should update their policies and practices to make sure gender identity and gender expression are explicitly included. Following are some of the workplace policies that employers should examine:

  • Anti-discrimination policy . As a commitment to equality, compliance under Title VII  and where state law requires, ensure sexual orientation, gender identity, gender expression and similar terms are on the list of protected classes. See  Equal Employment Opportunity Policy: Detailed . 
  • Dress code policy . Avoid gender stereotypes, such as men must wear dress trousers and women must wear skirts. Do not apply dress codes to off-duty conduct. Consider adding a provision that workers may dress in accordance with their full-time gender expression. See  When Do Dress Codes That Perpetuate Gender Stereotypes Cross the Line?
  • Benefits policies and offerings . Follow applicable state laws and monitor the federal law for changes to the ACA. Title VII will not allow the conditions of employment to be discriminatory based on sex, which will apply to benefit offerings. Some states will prohibit discrimination on the basis of gender identity as well and benefits must be designed to meet those requirements. See  3 Checklists for Avoiding LGBTQ Discrimination in Your Benefits Programs .
  • Diversity and inclusion initiatives. Make certain that transgender workers are included in the organization's affinity groups, local outreach efforts, internal programming and related training. See  How to Create Inclusive Workplaces for Transgender and Nonbinary Employees .
  • Recruitment and selection processes. Review processes for possible disparate impact or treatment of transgender workers. Improve processes by educating recruitment teams, contacting outreach organizations and conducting anti-discrimination analysis as needed. See  Hiring Bias and Workplace Bias .

Training employees to recognize and eliminate discrimination in the workplace is important for every employer and updating the organization's presentations to cover transgender workers is essential to provide equal opportunity to all employees. Such training should be included in both new-hire and annual training offerings. In addition, the employer's updated anti-discrimination training should be offered to all employees so that they understand the organization's expectations when a transgender employee is joining their ranks or when a current employee is in gender transition. Various support groups may be able to provide sample training presentations or speakers to help employers ensure the training is appropriate. See SHRM's sample training presentations for templates that can be used to prepare and educate a workforce on employer nondiscrimination and diversity and inclusion expectations in general.  

Workplace Issues

Some transgender individuals make the transition to full-time expression as another gender while on an employer's payroll. The transition may or may not include surgery, but it will likely require management's help with the person's adjustment in the workplace—and to help with co-workers' concerns throughout the process.

Make preparations

Although the number of people making a gender transition while remaining in their jobs appears to be increasing, few managers receive training to prepare for the moment when an employee informs them of plans to make such a transition. Knowledge of principles and techniques relevant to more familiar discrimination areas can be applied to issues that arise when an employee transitions. For a transition to be considered successful, it must work for the person in transition, for the people the individual works with and for the organization. If the organization follows basic guidelines, this process can go smoothly.

A complete discussion on managing a gender transition in the workplace is outside the scope of this article, but some general principles are offered. Management typically meets with the employee in transition, discusses changes that need to be made, and lets the timing of those changes be guided by the employee. Matters that may come up for consideration during the process include the following:

  • The person's name on organization documents.
  • Coverage under employer health benefits.
  • Communications to co-workers.
  • Security clearances.
  • Restroom and dressing room use.
  • Dress code rules.
  • Medical leave eligibility determinations.
  • Employee conduct expectations and training.
  • Client and customer communications.

Approach each transition individually

No two transitions are exactly alike. Some people, because of medical circumstances, are precluded from taking hormones or having surgery. Some postpone or decide against major surgical procedures because the costs are prohibitive for them and are not covered by their health insurance. Some in transition may choose cosmetic surgery, electrolysis, voice training or other procedures.

The specific steps of transition and their timing vary among individuals, and individuals vary in how public they want their transition to be. Some prefer that very few people know about the transition, and they want to blend in quietly as members of their new gender. Others are committed to educating people about transgender issues, are eager to answer questions and continue to talk openly about being transgender long after transition.

Work situations vary, too. The many circumstances that may have a bearing on how the transition should be handled include the nature of the enterprise and the degree to which it is public or private, the organizational culture, the composition of the workforce, the type of work being done, the physical layout of the workplace, and the amount of interaction the transgender employee has with peers, superiors, subordinates, vendors and clients. Because of such variables, there is no single formula for managing transitions in the workplace; rather, the process must be tailored to meet the needs of each specific situation.

Be knowledgeable about the legal definitions of gender

There is no single means of defining a person's legal gender, and there is no point in time when a transgender person changes from one gender to the other. The laws and rules on gender vary according to jurisdiction. For example, many states permit a transgender person to obtain a new driver's license with relative ease; this can help accommodate the medical requirement that a transgender person in surgical transition must live as a member of the person's new gender for at least a year prior to undergoing genital reconstructive surgery. In other states, changing the sex designation on any form of state-issued identification may be very difficult or even impossible. No uniformity on this issue exists among the states, between state and federal policies, or even among federal agencies.

Another influence on how transgender people are viewed is the context in which legal gender is being considered. Having a driver's license that shows the person's new sex is generally sufficient to enable a transgender person to be treated legally as a member of that gender. Some agencies, however, will not acknowledge a transgender person's new sex until the person presents evidence that the individual has taken an irreversible step to alter the body in the direction of the target sex. Such an irreversible step could be taking hormones over a period of time or having chest or genital reconstructive surgery. For some purposes, only genital surgery meets the requirement for having changed sex, but the exact nature of the genital surgery may be unspecified.

Given the variables in the law, tying recognition of gender in the workplace to legal recognition of the person's sex is problematic. Even more dubious is any attempt to base the person's acknowledged gender on medical or surgical treatment milestones. The most sensible approach for the employer is to consider the person to be a member of the sex in which the person presents. This approach is in accord with the growing legal trend toward recognizing that a transgender person should be treated as a legal member of the gender in which the individual lives life.

Some transgender and gender-nonconforming individuals prefer to use pronouns other than he/him/his or she/her/hers, such as they/them/theirs or ze/hir. See  Using Employees' Preferred Gender Pronouns .

Know how to deal with co-workers' attitudes

Many co-workers want to be supportive of transgender workers. Some employees, however, may be offended by the idea of a transgender person. Gender transition may run counter to their religious beliefs or moral standards. To reduce the likelihood of negative reactions to gender transition, the organization can establish a culture of appreciation of differences, provide adequate training and treat all employees fairly.

Diversity in a workplace means employees are able to work with all people; it does not require that employees believe in or accept transgenderism. Employees are entitled to their beliefs, but they should also be required to treat the transgender person—and every other employee—with respect.

Inclusion is about a diverse workforce becoming more productive, innovative and creative. It is about effectively harnessing the full range of available perspectives and experiences to create business advantage. To create a more inclusive environment, some organizations define appropriate workplace behaviors that are consistent with the employer's stated beliefs and values about inclusion and productivity. This process is about changing employees' workplace behaviors to be in accordance with the company's values, not changing an employee's personal beliefs and values. See  Creating a Trans-Inclusive Workplace .

Like all workers, transgender employers will be happier and more productive in a positive, supportive working environment. Just as an older worker employed in a workplace with mostly younger employees or a male employee working with mostly women might feel out of his element and comfort zone—and maybe even a bit ostracized—a transgender person regularly encounters such environments. Therefore, an employer that can foster and provide a positive, inclusive working environment, based on respect and professionalism, will likely enjoy workers who are happy to be there, engaged in their work and in the organization's success, and respectful of others.

Communicate well

Information about the organization's policies and guidelines for managing a gender transition should be widely accessible for employees, supervisors and managers, and HR professionals. The HRC's Workplace Gender Transition Guidelines 5 recommends that information appear in various venues, including these:

  • The organization's intranet, particularly the HR resources pages and any pages for LGBTQ+ employee groups.
  • The company's online and print code of conduct documents, covering employment nondiscrimination, equal employment opportunity policy, dress code, restroom policy and other topics.
  • The search engine used to navigate company sites and pages. Users should be able to find information by searching terms such as transition guidelines, gender identity, gender expression, transgender, transsexual, cross-dress, gender reassignment, sex reassignment, sex change or transgendered. (The terms sex change and transgendered are not preferred terminology, but are intended to capture potential searches).
  • Employee assistance program resources.
  • HR hotline resources.

See  Template for Gender Transition Guidelines .

When announcing an employee's plan to transition, senior management can send a strong message of support for the transitioning employee and set the tone for what is expected of staff.

Additional Resources

Checklist: LGBTQ+ Anti-Bias and Title VII Compliance

Memo to Employees Announcing the Gender Transition of a Co-worker

How should an employer handle a transgender employee's request for a name change?

How should a company handle issues related to the use of workplace restrooms by transgender employees?

How to Accommodate 'Gender-Nonbinary' Individuals—Neither Men nor Women

The Benefits of Offering Gender Neutral Bathrooms in the Workplace

Infographic: Flip the Script: Transgender in the Workplace—Words

Infographic: Flip the Script: Transgender in the Workplace – Actions

1 American Psychological Association. (n.d.). Answers to your questions about transgender people, gender identify and gender expression. Retrieved from http://www.apa.org/topics/lgbt/transgender.aspx

4 Title 42, Chapter 126, Sec. 12211. Definitions. Retrieved from https://www.ada.gov/pubs/adastatute08.htm#12211 5 Human Rights Campaign. (n.d.). Workplace gender transition guidelines. Retrieved from http://www.hrc.org/resources/entry/workplace-gender-transition-guidelines

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Gender Reassignment: Transgender Employment Rights -Where Are We Now?

Shah qureshi reviews the current position on transgender rights in the workplace.

Transgender, or trans, is a term which describes someone whose gender identity does not match the sex they were assigned at birth. Under s7 of the Equality Act 2010, someone who identifies as transgender is someone who: … is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person’s sex by changing physiological or other attributes of sex.

If the person in question decides to live permanently as the opposite gender without having any gender-changing surgery or hormone treatment, they are still protected from discrimination under the gender reassignment provisions of the Equality Act. 

In the workplace, the fact that someone identifies as transgender should not influence any decision about promotion, pay, benefits, training or redundancy just as someone’s race, religion and so on should not. Like individuals with any of the other eight protected characteristics, trans people are protected from unlawful direct and indirect discrimination, discrimination by perception or association, harassment and victimisation.

To take some examples: to amount to harassment, a comment or act does not have to be targeted at a specific person – for instance, an employee who has reassigned their gender might overhear colleagues making an offensive joke about trans people; a person does not need to have the protected characteristic themselves to claim harassment – for instance, an employee who is not transgender might be offended by transphobic comments; an employee associated with a transgender person (such as their partner, spouse or friend) is protected from victimisation and discrimination because of that association; and it could be unlawful discrimination to dismiss a trans woman because she was wrongly perceived as no longer being able to do a physically demanding job. 

The Equality Act also makes additional provisions specifically for gender reassignment. Under s16, trans employees are entitled to take time off work for reasons relating to their gender reassignment. Therefore, employers must treat a trans employee equally to other members of staff who require a period of absence from the workplace, otherwise they will be discriminating against that employee.  Gender Recognition Act 2004 

The Gender Recognition Act (GR Act) allows people over the age of 18 to obtain a gender recognition certificate if they wish to legally change their gender. This certificate allows the person to obtain a replacement birth certificate, marry or enter into a civil partnership in their acquired gender and also receive a state pension and benefits.

It is important to note that the Equality Act does not require a transgender person to obtain legal certification of their elected gender in order to be protected from discrimination. Not having a certificate should make no difference to how an employer treats a trans employee or assesses their performance; it should treat the person as being the gender that they identify as. 

The certificate does, however, add an extra layer of protection for the employee against discrimination. Under the GR Act, it is an offence punishable by a fine for an employer to disclose whether an employee holds a gender recognition certificate. It is also unlawful for an employer to ask for a certificate as a requirement of the person’s employment. There are some circumstances in which employers are allow to disclose such information, for example in relation to court proceedings or a criminal investigation as detailed under s22(4) of the GR Act.  Government position on the law

In September 2020, the government launched a consultation on the GR Act. It concluded that the current legislation has a sufficient balance for those who want to change their gender in law and no significant reform is required. In analysing the consultation responses, the government referred to a survey which it initiated in 2017, in which 38% of over 108,000 respondents said that the process of obtaining a gender recognition certificate is too complicated. 

The government agreed that the process needs to be made easier and modernised, so it plans to move the process online. It also committed to reducing the application fee significantly to make the process more accessible. It is evident that the government firmly believes the Equality Act is robust enough to protect transgender people from discrimination, whether that be in the workplace or wider society.

This may seem a blow to the transgender community given the significant time and cost required to obtain a certificate. However, the Equality Act does provide the backbone to anyone’s employment rights and it has proven successful in many cases since it was brought into force. 

Does protection go far enough? 

Transgender employees and workers receive some additional protection under the Equality Act against unlawful discrimination. However, there is a question mark over whether the current provisions adequately protect individuals who identify as gender fluid or nonbinary. 

Until recently, it was widely accepted that the Act only protected individuals whose gender reassignment is permanent and well established. However, this position has been challenged by the employment tribunal’s decision in Taylor v Jaguar Land Rover Ltd [2020] (see ‘Key steps to support non-binary employees after landmark ruling’ by Jennifer Millins, Molly Flood and Morgan Reardon, ELJ215 (November 2020)). 

The tribunal found that Rose Taylor, an engineer who self-identified as gender fluid, suffered unlawful harassment and bullying because of her protected characteristic of gender reassignment. The employment judge found that ‘gender is a spectrum’ and that being non-binary or gender fluid comes within the protected characteristic of gender reassignment. 

It should be borne in mind that this is a first instance decision and does not set a legal precedent. Jaguar Landrover may well appeal the decision. Nevertheless, the judgment is welcome to many in that it recognises that gender identity can take many forms and workers and employees should not be discriminated against for this reason.

This article was first published in Employment Law Journal .

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More From Forbes

The bostock decision one year later: how lgbtq+ employment discrimination laws are evolving.

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Lgbt rights and law

Last June, the Supreme Court took a major step forward on protections for LGBTQ+ workers when it handed down a landmark 6-3 decision in Bostock v. Clayton County . In Bostock , the Court ruled that Title VII of the 1964 Civil Rights Act prohibits employers from discriminating on the basis of sexual orientation and gender identity.

While Bostock addressed discrimination in the context of federal law, the Court’s decision has also had significant implications for state anti-discrimination laws.

The Bostock Decision

In Bostock , 140 S. Ct. 1731 (2020), the Court addressed three consolidated cases, each of which presented similar issues of LGBTQ+ discrimination:

  • In Bostock v. Clayton County , Gerald Bostock, a gay man, was fired for “conduct unbecoming of a county employee” after participating in a gay softball league.
  • In Altitutde Express, Inc. v. Zarda , Donald Zarda was fired shortly after revealing to a customer that he was gay.
  • In R.G. & G.R. Harris Funeral Homes v. Equal Employment Opportunity Commission , an employee who had previously presented herself as male was fired after notifying her employer that she planned to begin presenting as female in anticipation of undergoing gender reassignment surgery.

The plaintiffs in all three cases sued their employers for sex discrimination under Title VII. The Court thus faced the issue of whether Title VII’s ban on discrimination “because of sex” covered sexual orientation and gender identity.

Ultimately, the Supreme Court decided that both were included in Title VII’s prohibition on sex discrimination. Writing for the majority, Justice Gorsuch held that:

“An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”

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While the Court’s decision in Bostock specifically addressed the language of Title VII, its impact has extended to other laws.

State Laws After Bostock

Many states employ their own anti-discrimination laws. Most, however, do not include explicit protections for sexual orientation and gender identity. Currently, twenty-seven states do not have anti-discrimination laws that protect people from employment, housing, and public accommodation discrimination on the basis of sexual orientation and gender identity. At the same time, forty-nine out of the fifty states have general anti-discrimination laws that cover either “sex” or “gender.”

US Map Surrounded By States

Bostock has significantly impacted the enforcement of these state laws. Recently, a Texas Court of Appeals addressed the issue of whether Bostock applied to the Texas Commission on Human Rights Act (TCHRA), which bans discrimination “because of… sex.” Tarrant Cnty. Coll. Dist. v. Sims , No. 05-20-00351-CV (Tex. App. Mar. 10, 2021).

The court held that, in light of the Supreme Court’s decision in Bostock , they were compelled to read the TCHRA’s ban on sex discrimination “as prohibiting discrimination based on an individual’s status as a homosexual or transgender person.”

And Texas is not the only state to endorse SCOTUS’s reasoning in Bostock . Several other states have not waited for litigation to decide whether Bostock applies to their state law, instead formally announcing their intent to adopt the Court’s Bostock reasoning. In February, Florida’s Commission on Human Relations issued a notice that it would begin following Bostock when investigating state-level sex discrimination cases. Five other states – Arizona, Kansas Nebraska, North Dakota, and Pennsylvania – have also adopted Bostock into state law.

Why it Matters

While the Bostock decision extended protections under federal anti-discrimination law to LGBTQ+ workers in all fifty states, many state laws offer stronger protections than those available under Title VII.

For example, Title VII applies only to employers with at least fifteen employees. 42 U.S.C. §2000e. The majority of state employment discrimination laws, including those in Arizona, Kansas, North Dakota, and Pennsylvania, cover smaller employers. By adopting Bostock rationale, those states are now offering protection to LGBTQ+ employees whose employers may not be covered by Title VII.

State laws may also be more generous in other ways. Title VII caps damages in employment discrimination suits at different levels depending on the size of the employer. This can be as low as $50,000 and as high as the maximum combined compensatory and punitive damages of $300,000 (this does not include damages for lost wages). 42 U.S.C. §1981a.

However, some states, like Florida, do not impose a cap on compensatory damages for private employers. Fla. Stat. §760.11(5). [1] This means that, particularly for employees of smaller employers, it may be possible to recover more in damages for a discrimination claim under state law than Title VII.

Controversy Over Bostock

Though many have celebrated the Bostock decision for granting new legal protections to LGBTQ+ individuals, some have argued that these protections are in tension with the religious freedoms of employers, who, due to their religious beliefs, may be opposed to hiring an LGBTQ+ employee. Indeed, the Supreme Court’s ruling in Bostock specifically contemplated this potential conflict.

This argument is central to a recent suit , U.S. Pastor Council et al. v. Equal Employment Opportunity Commission , which was filed by Christian groups in the Northern District of Texas. The plaintiffs in the suit argue that they are entitled to a “religious exemption” from Bostock under the First Amendment and the Religious Freedom Restoration Act (RFRA). Additionally, they contend that they may still enforce what they claim are “gender neutral” anti-LGBTQ+ policies, such as bans on employees attending gay bars or using dating apps such as Grindr. The suit withstood a motion to dismiss in January and is currently set to go to trial this summer.

A Holy Bible sitting on top of a rainbow flag

Discussions of religious freedom have featured prominently in recent clashes over LGBTQ+ anti-discrimination policies outside of the employment context as well. The Supreme Court is expected to issue a key decision this month in Fulton v. City of Philadelphia , which deals with the City of Philadelphia’s refusal to contract with a Catholic social services organization that refuses to provide service to same-sex couples. In a recent filing, the Department of Justice also announced its intent to “vigorously” defend religious schools’ exemption to anti-LGBTQ+ discrimination laws.

With multiple challenges to sexual orientation and gender identity protections – including those granted by Bostock – pending, the next few months could be key to determining the scope of protections against employment discrimination for LGBTQ+ individuals.

[1] Florida does cap punitive damages at $100,000 for all private employers

Eric Bachman

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FACT SHEET: Biden- ⁠ Harris Administration Advances Equality and Visibility for Transgender Americans

Today, the Biden-Harris Administration recognizes Transgender Day of Visibility, an annual celebration of the resilience, achievements, and joy of transgender people in the United States and around the world. Every American deserves the freedom to be themselves. But far too many transgender Americans still face systemic barriers, discrimination, and acts of violence. Today, the Administration once again condemns the proliferation of dangerous anti-transgender legislative attacks that have been introduced and passed in state legislatures around the country. The evidence is clear that these types of bills stigmatize and worsen the well-being and mental health of transgender kids, and they put loving and supportive families across the country at risk of discrimination and harassment. As the President has said, these bills are government overreach at its worst, they are un-American, and they must stop. Transgender people are some of the bravest people in our nation. But nobody should have to be brave just to be themselves. Today, the Biden Administration announced new actions to support the mental health of transgender children, remove barriers that transgender people face accessing critical government services, and improve the visibility of transgender people in our nation’s data.

Reinforcing federal protections for transgender kids. The Justice Department announced today that it has issued a letter to all state attorneys general reminding them of federal constitutional and statutory provisions that protect transgender youth against discrimination, including when those youth seek gender-affirming care. Advancing dignity, respect, and self-determination for transgender people by improving the traveler experience. For far too long, transgender, non-binary, and gender non-conforming Americans have faced significant barriers to travelling safely and many have not had their gender identity respected as they travel within the United States and around the world. To create a safer and more dignified travel experience, the Biden Administration is announcing the following changes.

  • The Department of State is announcing that beginning on April 11, 2022, all U.S. citizens will be able select an “X” as their gender marker on their U.S. passport application. This is a major step in delivering on the President’s commitment to expand access to accurate identification documents for transgender and non-binary Americans. Information on how to apply will be available at travel.state.gov/gender .
  • Implementing enhanced screening technology. The Transportation Security Administration (TSA) will soon begin updating its Advanced Imaging Technology (AIT) body scanners with new technology that will increase security and efficiency by reducing false alarm rates and pat-downs for the traveling public. By replacing the current, gender-based system with this more accurate technology, TSA will improve the customer experience of transgender travelers who have previously been required to undergo additional screening due to alarms in sensitive areas.  This new technology will help to improve the experience of travelers, particularly those who are transgender and non-binary travelers. TSA will begin deploying this new technology in airports throughout the country later this year.
  • Expanding airline partnerships to enhance the overall travel experience.  TSA is working closely with air carriers across the nation to promote the use and acceptance of the “X” gender marker to ensure more efficient and accurate passenger processing. As of March 31st, two major domestic air carriers already offer a third gender marker option in their travel-reservation systems, with a third air carrier planning to offer this option in the Fall of 2022.
  • Streamlining identity validation. TSA has updated its Standard Operating Procedures to remove gender considerations when validating a traveler’s identification at airport security checkpoints. This ensures that TSOs can accurately and efficiently validate each traveler’s identity while avoiding unnecessary delays.
  • Updating TSA PreCheck and CBP Trusted Traveler Programs enrollment to include “X” gender markers. The Department of Homeland Security is beginning the process of adding “X” gender markers options in Trusted Traveler programs and the TSA PreCheck program to enhance access for transgender, non-binary, and gender non-conforming travelers to these programs.

Providing resources for transgender kids and their families. Transgender children are put at higher risk of attempted suicide or mental health challenges when they face bullying, rejection, or denial of health care. The Biden Administration is releasing several new resources to help transgender children and their parents thrive:

  • Providing mental health resources for transgender youth.  In recent months, multiple states have removed critical information about mental health resources for LGBTQI+ youth from official state websites. Transgender youth often face significant barriers in accessing supportive resources, and are at greater risk of attempted suicide. In response, the Department of Health and Human Services released a new website that offers resources for transgender and LGBTQI+ youth, their parents, and providers. These resources include best practices for affirming an LGBTQI+ child, and information about suicide prevention services.
  • Expanding trainings to support transgender and nonbinary students in schools. The Office of Safe and Supportive Schools in the Department of Education will offer new training for schools with experts and school leaders who will discuss the challenges faced by many transgender and nonbinary students and strategies and actions for providing support.
  • Confirming the positive impact of gender affirming care on youth mental health. The Substance Abuse and Mental Health Services Administration (SAMHSA) has posted LGBTQI+ Youth – Like All Americans, They Deserve Evidence-Based Care , in which Miriam Delphin-Rittmon, Ph.D., HHS Assistant Secretary for Mental Health and Substance Use and the leader of SAMHSA, shares how to engage LGBTQI+ youth, the evidence behind the positive effects of gender affirming care, and available resources for LGBTQI+ youth, their families, providers, community organizations, and government agencies.
  • Confirming that gender-affirming care is trauma-informed care. The National Child Traumatic Stress Network (NCTSN), which is administered by the Substance Abuse and Mental Health Services Administration, is releasing new information for providers confirming that providing gender-affirming care is neither child maltreatment nor malpractice.
  • Providing resources on the importance of gender affirming care for children and adolescents. The Office of the Assistant Secretary for Health has developed a resource to inform parents and guardians, educators, and other persons supporting children and adolescents with information on what is gender-affirming care and why it is important to transgender, nonbinary, and other gender expansive young people’s well-being.

Improving access to federal services and benefits for transgender Americans.  With support and coordination from the U.S. Digital Service, federal agencies are removing barriers to access government services by improving the customer experience of transgender, non-binary, and gender non-conforming Americans:

  • Accessing retirement savings. The Social Security Administration is announcing that it is removing the requirement that transgender people show proof of identity such as doctor’s notes in order to update their gender information in their social security record by the fall of 2022. This will significantly improve transgender individuals’ experience in accessing their retirement benefits, obtaining health care, and applying for jobs.
  • Filing an employment discrimination complaint . The U.S. Equal Employment Opportunity Commission (EEOC) is announcing that it will promote greater equity and inclusion for members of the transgender community by giving individuals the option to select an “X” gender marker during the voluntary self-identification questions that are part of the intake process for filing a charge of discrimination.
  • Applying for federal student aid. The Department of Education plans to propose next month that the 2023-24 FAFSA (Free Application for Federal Student Aid) will include an opportunity for applicants to indicate their gender identity as well as their race/ethnicity when applying for federal financial aid. The questions, which will be posted for public comment, will be in a survey that accompanies the application. This privacy-protected information would help to inform the Department about possible barriers students, including transgender and nonbinary students, face in the financial aid process.
  • Visiting the White House.  The White House Office of Management and Administration is announcing that it is beginning the process of implementing updates that will improve the White House campus entry process for transgender, gender non-conforming, and non-binary visitors by adding an “X” gender marker option to the White House Worker and Visitor Entry System (WAVES) system. This change will ensure that transgender, non-binary, and gender nonconforming people can visit the People’s House in a manner that respects and affirms their gender identity.

Advancing inclusion and visibility in federal data. In too many critical federal surveys and data systems, transgender, non-binary, and gender non-conforming people are not fully reflected. To improve visibility for transgender Americans, agencies are announcing new actions to expand the collection and use of sexual orientation and gender identity (SOGI) data.

  • The White House announced that the President’s proposed Fiscal Year 23 budget includes $10 million in funding for additional critical research on how to best add questions about sexual orientation and gender identity to the Census Bureau’s American Community Survey, one of our nation’s largest and most important surveys of American households. This data collection will help the federal government better serve the LGBTQI+ community by providing valuable information on their jobs, educational attainment, home ownership, and more.
  • The Department of Health and Human Services has released the findings of the federal government’s first-ever user research testing conducted with transgender Americans on how they want to see themselves reflected on Federal IDs. This groundbreaking user research by the Collaborating Center for Question Design and Evaluation Research (CCQDER) at the National Center for Health Statistics (NCHS) directly informed the State Department’s adopted definition of the “X” gender marker.
  • The Department of Health and Human Services  has released a comprehensive new consensus study on Measuring Sex, Gender Identity, and Sexual Orientation. This work, commissioned by the National Institutes of Health and carried out by the National Academies of Sciences, Engineering, and Medicine, will inform additional data collections and future research in how to best serve LGBTQI+ Americans.

These announcements build on the Biden-Harris Administration’s historic work to advance equality for transgender Americans since taking office, including: Combatting legislative attacks on transgender kids at the state level.

  • Condemning anti-transgender bills. The President has consistently made clear that legislative attacks against transgender youth are un-American, and are bullying disguised as legislation. In his March, 2022 State of the Union Address, the President said, “The onslaught of state laws targeting transgender Americans and their families is wrong. As I said last year, especially to our younger transgender Americans, I will always have your back as your President, so you can be yourself and reach your God-given potential.” The White House has also hosted listening sessions with transgender youth and advocates in states across the country that are impacted by anti-transgender legislative attacks.
  • Reaffirming that transgender children have the right to access gender-affirming health care. In March, following state actions that aim to target parents and doctors who provide gender-affirming care to transgender children with child abuse investigations, the Department of Health and Human Services took multiple actions to support transgender children in receiving the care they need and promised to use every tool available to protect LGTBQI+ children and support their families.
  • Department of Justice statements of interest and amicus briefs. The Department of Justice’s Civil Rights Division has filed Statements of Interest and amicus briefs in several matters to protect the constitutional rights of transgender individuals, including in Brandt v. Rutledge , a lawsuit challenging legislation restricting access to gender-affirming care for transgender youth; B.P.J. v. West Virginia State Board of Education , a lawsuit challenging legislation restricting participation of transgender students in school sports; Corbitt v. Taylor , a lawsuit challenging legislation restricting the ability to change gender markers on state driver’s licenses; and Adams v. School Board of St. John’s County , which involves the right of a transgender boy to use the boys’ restroom at his school.

Advancing civil rights protections for transgender Americans

  • Fighting for passage of the Equality Act.  President Biden  continues to call  on the Senate to pass the Equality Act, legislation which will provide long overdue federal civil rights protections to transgender and LGBTQI+ Americans and their families. As the White House has  said , passing the Equality Act is key to addressing the epidemic levels of violence and discrimination that transgender people face. The Administration’s first Statement of Administration Policy was in support of the Equality Act, and the White House has convened national leaders to discuss the importance of the legislation.
  • Signing one of the most comprehensive Executive Orders on LGBTQI+ rights in history.  Within hours of taking office, President Biden signed an  Executive Order  which established that it is the official policy of the Biden-Harris Administration to prevent and combat discrimination against LGBTQI+ individuals, and to fully enforce civil rights laws to prevent discrimination on the basis of gender identity or sexual orientation. This Executive Order is one of the most consequential policies for LGBTQI+ Americans ever signed by a U.S. President. As a result of that Order, the Departments of Health and Human Services , Housing and Urban Development , Education , Consumer Financial Protection Bureau , and Justice have announced that they are expanding non-discrimination protections for transgender people in health care, housing, education, credit and lending services, and community safety programs.

Supporting transgender service members and veterans

  • Reversing the discriminatory ban on transgender servicemembers.  In his first week in office, President Biden  signed  an Executive Order reversing the ban on openly transgender servicemembers serving in the Armed Forces, enabling all qualified Americans to serve their country in uniform. President Biden believes that an inclusive military strengthens our national security As a result of his Executive Order, the Department of Defense issued new  policies  which prohibit discrimination against transgender servicemembers, provide a path for transgender servicemembers to access gender-affirming medical care, and require that all transgender servicemembers are treated with dignity and respect.
  • Supporting transgender veterans. To ensure that transgender veterans are treated with dignity and respect, the Department of Veterans Affairs (VA) launched an  agency-wide review  of its policies and practices to ensure that transgender veterans and employees do not face discrimination on the basis of gender identity or expression. In June, VA also announced that it is beginning the regulatory process to remove restrictions that prevent transgender veterans from accessing the gender-affirming care they need and deserve.

Responding to the crisis of anti-transgender violence and advancing safety

  • Establishing a White House-led interagency working group on anti-transgender violence. To address the crisis of anti-transgender stigma and violence, during Pride Month in 2021 the White House established the first Interagency Working Group on Safety, Opportunity, and Inclusion for Transgender and Gender Diverse Individuals. The Working Group is co-led by the White House Domestic Policy Council and Gender Policy Council. To inform the priorities of the Working Group, throughout the fall of 2021 the White House convened 15 historic listening sessions with transgender and gender diverse people, advocates, and civil rights leaders from across the country and around the world, including a White House roundtable with transgender women of color .
  • Releasing a White House report uplifting the voices of transgender people on gender-based violence and discrimination. On Transgender Day of Remembrance, the White House released a  report  sharing the perspectives from White House listening sessions, uplifting the voices and advocacy of transgender people throughout the country, and highlighting over 45 key, early actions the Biden-Harris Administration is taking to address the root causes of anti-transgender violence, discrimination, and denial of economic opportunity.
  • Department of Justice civil rights enforcement actions. On September 14, 2021, the Department of Justice announced that it was launching a statewide civil investigation into Georgia’s prisons, which includes a focus on sexual abuse of transgender prisoners by other prisoners and staff. The Department of Justice’s Civil Rights Division and U.S. Attorney’s Office for the District of Puerto Rico also obtained a federal indictment charging three men with hate crimes for assaulting a transgender woman because of her gender identity.
  • Ensuring non-discrimination protections in community safety programs. The Department of Justice issued a Memorandum from the Assistant Attorney General for Civil Rights regarding the application of Bostock v. Clayton County to the nondiscrimination provisions of the Safe Streets Act, the Juvenile Justice and Delinquency Prevention Act, the Victims of Crime Act, and the Violence Against Women Act to strengthen non-discrimination protections for transgender and LGBTQI+ individuals in key community safety programs.
  • Strengthening protections for transgender individuals who are incarcerated. In January 2022 the Bureau of Prisons revised its manual on serving transgender offenders , improving access to gender-affirming care and access to facility placements that align with an inmate’s gender identity.
  • Honoring those lost to violence.  The White House and the Second Gentleman of the United States hosted a first of its kind vigil in the Diplomatic Room of the White House to honor the lives of transgender and gender diverse people killed in 2021, and the countless transgender and gender diverse people who face brutal violence, harassment, and discrimination in the United States and around the world. The President also released a statement honoring the transgender people who lost their lives to violence.
  • Advancing safety and justice for transgender and Two-Spirit Indigenous people. LGBTQI+ Native Americans and people who identify as transgender or “Two-Spirit” are often the targets of violent crimes. On November 15, 2021, President Biden signed an Executive Order on Improving Public Safety and Criminal Justice for Native Americans and Addressing the Crisis of Missing or Murdered Indigenous People. The Executive Order directs federal agencies to work hand in hand with Tribal Nations and Tribal partners to build safe and healthy Tribal communities to address the crisis of Missing and Murdered Indigenous People, including LGBTQI+ and “Two-Spirit” Native Americans.

Advancing health equity and expanding access to gender-affirming health care to support transgender patients

  • Protecting transgender patients from health care discrimination. The Department of Health and Human Services (HHS) announced that it would interpret and enforce section 1557 of the Affordable Care Act’s prohibition on discrimination on the basis of sex in certain health programs to prohibit discrimination on the basis of gender identity and sexual orientation.
  • Advancing gender-affirming care as an essential health benefit.  In 2021, the Centers for Medicare and Medicaid Services (CMS) approved the first ever application from a state to add additional gender-affirming care benefits to a state’s essential health benefit benchmark plan.
  • Advancing health equity research on gender-affirming care.  The National Institutes of Health (NIH) announced that it will increase funding for research on gender-affirming procedures to further develop the evidence base for improved standards of care. Research priorities include a more thorough investigation and characterization of the short- and long-term outcomes on physical and mental health associated with gender-affirming care.
  • Ending the HIV crisis among transgender and gender diverse communities.  In December, 2021, in recognition of World AIDS Day, the White House Office of National AIDS Policy released a revised National HIV/AIDS Strategy which now identifies transgender and gender diverse communities as a priority population in the federal government’s strategy to end the HIV epidemic.
  • Advancing access to gender-affirming care through Ryan White HIV/AIDS Program. The Health Resources and Services Administration announced that it has released a letter encouraging Ryan White HIV/AIDS Program service providers to provide access to gender affirming care and treatment services to transgender and gender diverse individuals with HIV. The letter reaffirms the importance of providing culturally-affirming health care and social services as a key component to improving the lives of transgender people with HIV.
  • Ensuring transgender patients can access birth control. In 2021 HHS issued a final rule to strengthen the Title X family planning program, fulfilling the Biden-Harris Administration’s commitment to restore access to equitable, affordable, client-centered, quality family planning services. The rule requires family planning projects to provide inclusive care to LGBTQI+ persons. Additionally, the rule prohibits discrimination against any client based on sex, sexual orientation, gender identity, sex characteristics, or marital status.

Supporting transgender students and their families

  • Ensuring educational environments are free from sex discrimination and protecting LGBTQI+ students from sexual harassment.  President Biden signed an  Executive Order  recommitting the Federal Government to guarantee educational environments free from sex discrimination, including discrimination on the basis of sexual orientation or gender identity. The Executive Order charged the Department of Education with reviewing the significant rates at which students who identify as LGBTQ+ are subject to sexual harassment, including sexual violence. The Department of Education has announced that it intends to propose amendments to its Title IX regulations this year.
  • Protecting the rights of transgender and gender diverse students. The Department of Education has affirmed that federal civil rights laws protect all students, including transgender and other LGBTQI+ students, from discrimination. The Department published a notice in the Federal Register announcing that it interprets Title IX’s statutory prohibition on sex discrimination as encompassing discrimination based on sexual orientation and gender identity.
  • Department of Justice memorandum on Title IX. The Department of Justice issued a memorandum regarding the application of Bostock to Title IX.
  • Speaking directly to transgender students. The Department of Justice, Department of Education, and Department of Health and Human Services issued a joint back to school message for transgender youth.
  • Outreach and education to transgender and gender diverse students and their families. The Department of Education has published fact sheets and other resources showing the federal government’s support for transgender students, highlighting the ways schools can support students, reminding schools of their duty to investigate and address harassment based on sexual orientation or gender identity, and informing students how they can assert their rights and file complaints.
  • Advancing research to address the harms of so-called conversion therapy.  The Substance Abuse and Mental Health Services Administration (SAMHSA) announced that it will update its 2015 publication  Ending Conversion Therapy: Supporting and Affirming LGBTQ Youth  to reflect the latest research and state of the field. 

Promoting fair housing and ending homelessness for transgender Americans

  • Advancing fair housing protections on the basis of gender identity. In February 2021 the Department of Housing and Urban Development (HUD) announced that it would administer and enforce the Fair Housing Act to prohibit discrimination on the basis of gender identity and sexual orientation.
  • Ensuring safety and access to services for transgender people experiencing homelessness. In April, HUD withdrew the previous administration’s proposed “Shelter Rule,” which would have allowed for federally funded discrimination against transgender people who seek shelter housing. By withdrawing the previous administration’s proposed rule, the agency has restored protections for transgender people to access shelter in line with their gender identity. HUD has also released new tools for recipients to ensure compliance with these requirements in shelters and other facility settings.

Advancing economic opportunity and protections for transgender workers

  • Ensuring nondiscrimination protections for transgender and gender diverse workers. In November 2021, the Department of Labor’s Office of Federal Contract Compliance Programs proposed to rescind the agency’s 2020 rule “Implementing Legal Requirements Regarding the Equal Opportunity Clause’s Religious Exemption,” an important step toward protecting workers from discrimination while safeguarding principles of religious freedom.
  • Ensuring equal access to the workforce development system. The Department of Labor is enforcing discrimination prohibitions in workforce development programs funded by the Workforce Innovation and Opportunity Act, protecting workers from discrimination based on their gender identity or transgender status.

Advancing gender equity and transgender equality at home and around the world

  • Advancing transgender equality in U.S. foreign policy and foreign assistance. In line with the Presidential Memorandum on Advancing the Human Rights of LGBTQI+ Persons Around the World , the United States is making significant investments to uphold dignity, equality and respect for transgender persons globally.  For example, USAID supports the Global Barometer for Transgender Rights and the LGBT Global Acceptance Index which track progress and setbacks to protecting transgender lives around the world.  The Department of Health and Human Services through the United States President’s Emergency Plan for AIDS Relief supports inclusive health care services for transgender individuals, enabling health clinics to provide care to the transgender community. And through the Department of State’s Global Equality Fund , local transgender rights organizations receive support to document human rights violations and provide critical legal assistance to community members.  
  • Establishing the White House Gender Policy Council to Advance Gender Equity and Equality.  President Biden signed an  Executive Order  establishing the White House Gender Policy Council to advance gender equity and equality across the whole of the government, including by addressing barriers faced by LGBTQ+ people, in particular transgender women and girls, across our country.  

Supporting transgender leaders and public servants

  • Making the Federal government a model employer for transgender public servants. President Biden signed an  Executive Order  which takes historic new steps to ensure the Federal government is a model employer for all employees – including transgender, gender non-conforming, and non-binary employees. The Executive Order charges agencies with building inclusive cultures for transgender employees by: expanding the availability of gender-neutral facilities in Federal buildings; ensuring that employee services support transgender employees who wish to legally, medically or socially transition; advancing the use of non-binary gender markers and pronouns in Federal employment processes; and expanding access to gender-affirming care and inclusive health benefits.
  • Appointing historic transgender leaders. The Biden-Harris Administration includes barrier-breaking LGBTQI+ leaders, including Assistant Secretary for Health Dr. Rachel Levine, who is the first openly transgender person ever confirmed by the U.S. Senate. In October, she was also named a four-star admiral in the U.S. Public Health Service Commissioned Corps, becoming the first openly transgender person to hold that rank in any of the country’s uniformed services. Over 14 percent of Biden-Harris Administration appointees identify as LGBTQI+.

Advancing visibility for transgender Americans

  • Issuing the First White House Proclamation for Transgender Day of Visibility.  On March 31, 2021 President Biden became the first U.S. President to issue a  proclamation  commemorating Transgender Day of Visibility.  
  • Hosting a White House Virtual Convening on Transgender Equality.  In June, White House Press Secretary Jen Psaki hosted a first-of-its-kind  national conversation  on equality for transgender, gender non-conforming, and non-binary Americans.
  • Releasing a toolkit on equality and inclusion for transgender Americans.  The White House released a new  toolkit  with best practices for advancing inclusion, opportunity, and safety for transgender Americans.
  • Establishing a National Pulse Memorial. On June 25, 2021, President Biden signed H.R. 49 into law to designate the National Pulse Memorial. As the President acknowledged in his statement on the fifth anniversary of the Pulse nightclub shooting, we must acknowledge gun violence’s particular impact on LGBTQ+ communities across our nation, and we must drive out hate and inequities that contribute to the epidemic of violence and murder against transgender women – especially transgender women of color. As the President has said, Pulse Nightclub is hallowed ground.

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  • Int J Transgend Health
  • v.22(3); 2021

Workplace support and affirming behaviors: Moving toward a transgender, gender diverse, and non-binary friendly workplace

Ann hergatt huffman.

a Department of Psychological Sciences and W. A. Franke College of Business, Northern Arizona University, Flagstaff, Arizona, USA

Maura J. Mills

b Culverhouse College of Business, Department of Management, University of Alabama, Tuscaloosa, Alabama, USA

Satoris S. Howes

c College of Business, Oregon State University, Bend, Oregon, USA

M. David Albritton

d W. A. Franke College of Business, Northern Arizona University, Flagstaff, Arizona, USA

Background: The experiences of transgender, gender diverse, and non-binary (TGDNB) workers remain poorly understood and under-examined in the extant literature, with workplace support perceptions and affirming behaviors of these workers particularly misunderstood.

Aims: We address this gap in the literature by presenting and empirically testing a theoretical model that suggests affirming behaviors are differentially related to various sources of TGDNB worker support. We further suggest these sources of support are differentially related to TGDNB employee satisfaction and gender identity openness at work.

Methods: We collected data from trans-related social media groups, inviting TGDNB-identifying employees to participate in the study. Quantitative and qualitative data from 263 TGDNB employees were collected through survey administrations.

Results: Supervisor and coworker support are related to job and life satisfaction, with supervisor support strongly connected to job satisfaction. The use of gender-affirming pronouns/titles and discouraging derogatory comments at work were related to perceived TGDNB support. Positive transgender organizational climate was strongly related to gender identity openness at work.

Discussion: Results highlight a need for better workplace inclusivity and TGDNB-friendly environments, as well as more diversity training and company policy improvements that directly impact the workplace experiences of TGDNB people.

Introduction

The June 2020 landmark ruling by the United States Supreme Court (Bostock v. Clayton County, Georgia; No. 17–1618) ruled that LGBTQ (lesbian, gay, bisexual, transgender, questioning or queer) employees are protected from discrimination based upon sex protections under Title VII of the Civil Rights Act of 1964. While this ruling is of great consequence to the entire LGBTQ community, it is perhaps even more important for transgender, gender diverse, and non-binary (TGDNB) individuals who are themselves a minority within the broader LGBTQ community. That is, despite a staggering 1.4 million people in the U.S. workforce identifying as TGDNB (Flores et al., 2016 ), they only represent approximately 12% of LGBTQ population (Conron, 2019 ). Yet, even with the newfound federal protections afforded by the Supreme Court’s ruling, TGDNB employees likely need additional workplace support to truly realize equitable treatment to their cisgender counterparts. Enhanced workplace support could be especially helpful for TGDNB workers given this court ruling, as leaders who have refused to offer protections in the past may resort to retaliation or bullying tactics as a form of resistance to being forced to comply with Title VII requirements and the employee accommodations that they oppose.

Compared to their cisgender counterparts, TGDNB individuals report more anxiety (Bouman et al., 2017 ) and life stress (Brewster et al., 2014 ), and these heightened levels of stress likely translate to the workplace. Indeed, TGDNB employees not only experience stressors common to many employees (e.g., work overload), but additional stressors tied to their nonconforming gender identity, including personal safety (Mizock et al., 2018 ) and gender policing (Martinez et al., 2017 ). Some estimates suggest that 30% of transgender employees have been fired, denied a promotion, or experienced another form of workplace mistreatment due to their gender identity or expression (Human Rights Campaign, 2018).

While TGDNB employees utilize a multitude of individual coping strategies to deal with transphobia at work (Mizock et al., 2017 ), there remains a lack of adequate external support for challenges specifically related to gender identity at work (Bradford et al., 2013 ). Much of what we have learned about sexual minority status and organizational support has come from studies focused on sexual orientation (i.e., LGB only samples) with a general dismissal of gender identity, or a blending of the two such that specific needs of TGDNB individuals (vs. LGB individuals) cannot be determined. Likewise, while much of the corporate milieu is actively embracing LGB culture and employees (Bloomberg Businessweek, 2019 ), TGDNB employees still find themselves on the fringes, even in otherwise supportive environments. TGDNB employees not only have notably different needs than their cisgender peers (e.g., support during transition), they are also confronted with different behaviors than individuals from other sexual minority groups (e.g., discrimination during transition; Brewster et al., 2014 ). Thus, research attention focused on TGDNB employees’ needs and experiences in the workplace is much needed to both inform a clearer general understanding, as well as to better guide practitioners as they manage their human resource needs. Indeed, Ozturk and Tatli ( 2016 ) highlighted that “gender identity diversity [is] a key blind spot in human resource management (HRM) and diversity management research and practice” (p. 781), emphasizing the need to expand diversity management considerations both conceptually and practically by unpacking the experiences and needs of transgender employees.

In one of the few studies to focus on support needs of TGDNB individuals at work, Law et al. ( 2011 ) found that TGDNB employees have specific support needs in the workplace (e.g., supportive environment to disclose), and called for additional work to “equip [transgender] employees, their coworkers, and organizations with the knowledge and strategies that are helpful in improving the workplace experiences of these employees” (p. 721). In response to these calls (Law et al., 2011 ; Ozturk & Tatli, 2016 ), we examine several support behaviors and corresponding mechanisms essential for TGDNB employee wellbeing, and propose a mediation model of affirming behaviors’ impact on key outcomes through differential support mechanisms. Our model also extends prior work (e.g., Huffman et al., 2008 ) on LGB-specific support, providing insight into which support behaviors and mechanisms are most critical for TGDNB employees’ life satisfaction, job satisfaction, and openness at work.

Showing support through affirming behaviors

Social support is grounded in interpersonal interactions that are emotional (e.g., offering sympathy; Mathieu et al., 2019 ), instrumental (e.g., offering assistance; Bamberger et al., 2017 ), and structural (e.g., having the availability of others to offer care or help, Parker et al., 2013 ). These different types of “assistance” can be made available by individuals or by the organization itself, and in the workplace usually manifest through supervisors, coworkers, or organizational policies, procedures, and practices. Social support is negatively associated with work stressors (for a meta-analytic review, see Viswesvaran et al., 1999 ), and moderates the relationship between different stressors and strain (Ganster et al., 1986 ). Importantly, different groups need different types of support (Wortman & Dunkel-Schetter, 1987 ). For example, Wayment and Peplau ( 1995 ) found that lesbians value social support related to their sexual orientation identity more than heterosexual women. Similarly, Huffman et al. ( 2008 ) found that organizational support for LGB employees was an important factor for these employees in particular. Unfortunately, neither of these studies examined actual behaviors, which could help organizations expand support systems overall, and ultimately have a positive effect on shared culture and worker performance.

We examine three specific behaviors in the context of the workplace: (a) encouraging proper pronoun/title usage, (b) discouraging derogatory comments, and (c) providing appropriate restroom access. While these are common recommendations from advocacy groups (e.g., GLAAD., 2019 ), it is unknown to what extent these actions may be deemed necessary with regard to Title VII requirements for nondiscriminatory practices. Further, research is lacking regarding what impact these affirming behaviors actually have within the workplace. Considering that sexual orientation minorities have expressed the importance of allies engaging in supportive behaviors in the workplace (Martinez et al., 2017 ), it stands to reason that TGDNB employees would demonstrate a similar need for such targeted support. To this end, we examine the impact of these three specific behaviors on improving TGDNB perceptions of support, and, in turn, on several subsequent outcomes.

Use of gender-affirming pronouns/titles . Use of correct pronouns/titles is one of the most basic ways to show respect for someone’s gender identity. Pronoun usage has grown to represent appropriate descriptors for those of all gender identities. As awareness of gender expands, so too does its linguistic framing, requiring language to correspondingly reflect societal awareness (Darr & Kibbey, 2016 ). Referring to individuals with inappropriate pronouns/titles can result in feelings of disrespect, invalidation, dismissiveness, alienation, and dysphoria (Dietert & Dentice, 2009 ; Sawyer et al., 2016 ). Professionally, failure to properly reference colleagues is not only disrespectful, but also inherently disparaging and oppressive (Markman, 2011 ). Accordingly, when coworkers and supervisors use individuals’ appropriate gender pronouns/titles, TGDNB employees are likely to feel less overtly stigmatized. As such, gender-affirming pronoun/title usage in the workplace has become less about extending courtesy and more about practicing basic human dignity (Human Rights Campaign, 2019 ).

Nevertheless, it is notable that incorrect title/pronoun usage is not always purposeful or malicious (though importantly, impact > intent). Despite the increased inclusion of gender pronouns in email signature lines in some more progressive and inclusive companies, the practice is relatively new and not yet widespread. As such, coworkers and supervisors may not know which terms should be used, or understand the importance of using such appropriate personal referents. Further, titles/pronouns are ubiquitous in organizational dialogue and communication, both verbally (e.g., internal meetings, client interface) and in written correspondence (e.g., email, paperwork). This pervasive use of titles/pronouns, combined with the fact that incorrect usage is not always intentional, suggests that appropriate behavior would be important across all levels of support (i.e., supervisor, coworker, organization). To the extent that supervisors and coworkers use gender-affirming pronouns and titles, TGDNB employees are likely to interpret this as a sign of support. By extension, they are also more likely to perceive the organizational culture as supportive.

Hypothesis 1: Use of gender-affirming pronouns/titles is positively related to (a) supervisor support, (b) coworker support, and (c) transgender-friendly organizational culture.

Discouragement of derogatory statements . Whereas derogatory statements or disparaging expressions implying a lack of respect are not exclusively targeted at TGDNB employees, usage toward TGDNB workers constitutes a form of transphobia that can lead to both subtle and overt discrimination. Unfortunately, verbal harassment via derogatory terms is common for TGDNB individuals, with Grant et al. ( 2011 ) finding that 50% of TGDNB employees experienced workplace harassment. Derogatory statements suggest power and status of one group (e.g., cisgender employees) over another group and its members (i.e., TGDNB employees), and is widely perceived as demeaning and marginalizing to the target (Becker, 1963 ). Derogatory comments not only affect the target individual, but also perceptions of the target by those exposed to the comments. For example, Goodman et al. ( 2008 ) found that bystanders who witnessed derogatory comments about gay leaders were less likely to rate those leaders favorably.

As with any employee exposed to negative workplace experiences, social support in the workplace is critical (Kurtessis et al., 2017 ). Discouragement of any type of ill-mannered behavior may be seen as the responsibility of management and/or reflective of the organization’s culture (Society for Human Resource Management, 2020 ). Although derogatory behaviors may be initiated by coworkers, the oversight and management of such behaviors is usually associated with management and the organization as a whole that is allowing such negative behaviors to occur unchecked. As such, the extent of discouragement of derogatory statements is likely tied in the minds of TGDNB employees to the supportiveness of one’s supervisor and friendliness of the organizational culture.

Hypothesis 2: Discouragement of derogatory statements is positively related to (a) supervisor support and (b) transgender-friendly organizational culture.

Provision of access to gender-appropriate bathrooms. Taranowski ( 2008 ) suggested that gender-appropriate bathroom access is one of the most central ways that organizations can foster a safe environment for transgender employees. Bathroom access represents respect for employees’ most basic rights of human dignity and self-expression within the workplace and beyond (Juang, 2013 ). On the other hand, lost valuation due to an absence of appropriate bathroom access represents a general lack of recognition that can be particularly problematic for marginalized workers. For example, a devalued employee may become a scapegoat for the hostility of others and, over time, may begin to see themselves through the hostile lens of others (e.g., Herek, 2007 ; Link & Phelan, 2014 ). Indeed, TGDNB individuals face a number of both psychological and physical safety risks, as evidenced in studies documenting incidents of discomfort, harassment, and assault (e.g., Sanders & Stryker, 2016 ). Consequently, private or closeted self-expression can become a destructive force negatively impacting work-related attitudes such as employee performance, organizational citizenship behavior, and turnover (Webster et al., 2018 ).

TGDNB individuals may experience fear, anxiety, discomfort, and/or dissonance when faced with the frequent decision of which bathroom to use and/or having to use a bathroom misaligned with their personal gender identity (Boylan, 2013 ). In a study of TGDNB youth, perceptions of bathroom safety were related to feelings of anxiety, with these young people noting the need for bathroom choice (Weinhardt et al., 2017 ). There is certainly no reason to believe employees would feel differently on this issue. Moreover, when policies are not in place to grant access to appropriate facilities, TGDNB employees are at increased risk for discrimination (see James et al., 2016 ).

Workplace bathroom access, as a basic physiological and safety need, is, in most cases, considered primarily an organizational policy issue, as restrooms represent a structural element of the physical workplace. Consequently, it is organizational leadership that would establish systems to expand bathroom access, via formal policy changes allowing enhanced access to current facilities or by modifying existing facilities to allow different options for bathroom access (e.g., create gender neutral or private options). As such, we suggest that appropriate access to the bathroom of choice is likely related to positive employee perceptions of a transgender-friendly organizational culture.

Hypothesis 3: Provision of access to gender-appropriate bathrooms is positively related to transgender-friendly organizational culture.

Workplace support and outcomes for TGDNB employees

Understanding how affirming behaviors are related to different support mechanisms is a crucial step in providing insight into how support can be developed at different levels within the organization. Additionally, it is important to understand how different forms of support are related to important outcomes for both employees and organizations. Employees have perceptions concerning how much an organization values their contributions and provides them with support (Eisenberger et al., 1986 ). These perceptions of support are based on factors such as human resource practices, levels of satisfaction, and the support of supervisors and other key constituents. In addition, affirming behaviors toward TGDNB employees should be related to the different forms of support.

We focus our attention on how our previous outcomes of interest – supervisor support, coworker support, and transgender-friendly organizational culture – relate to job satisfaction, life satisfaction, and gender-identity openness at work. Job satisfaction represents the affective appraisal of one’s work life, whereas life satisfaction expands beyond work to include an overall appraisal across multiple life domains. Gender-identity openness reflects the extent to which individuals are forthcoming about how they perceive their own gender identity. On one end of the continuum, an individual may be very open to sharing their genuine gender identity, while on the other end of the continuum, another individual may be completely closeted, concealing their genuine gender identity entirely.

The compatibility principle (Ajzen & Fishbein, 1977 ) suggests that attitudes and behaviors have four elements: action, target, context, and time. When attitudes and behaviors share these elements, they have high correspondence, which enhances the predictive ability of the attitude to generate a specific behavior. Huffman et al. ( 2008 ) extended the compatibility principle by arguing that two attitudes can similarly have a level of correspondence. For example, attitudes about a specific consultant will be a much better predictor of attitudes about seeking assistance from that consultant, rather than general attitudes toward the consulting firm where the consultant works. Huffman et al. found that specific types of support (e.g., supervisor support) were indeed related to specific attitudinal outcomes (e.g., job satisfaction), and not to other, more general attitudinal outcomes (e.g., life satisfaction). Similar patterns were found in Mathieu et al. ( 2019 ) meta-analytic comparison of emotional and instrumental support in the workplace, whereby emotional and instrumental support were related to different criteria based on the level of contextual overlap.

We follow the concepts of correspondence and specificity, proposing that specific types of perceived support are related to their own unique outcomes. In line with Huffman et al.’s findings regarding LGB individuals as well as with other past research (Brewster et al., 2012 ), we suggest that job satisfaction for TGDNB employees will be related to perceptions of supervisor supportiveness. Supervisors generally have more inherent control over the specifics of an employee’s job than do other work stakeholders. Thus, the relationship between employee and supervisor has a focus primarily on job duties and events. Conversely, coworker relationships have a work focus but often extend beyond job duties and events, and might cascade into other areas of life. Moreover, compared to supervisors, coworkers are generally less able to make structural changes to the job, are not able to administer/approve policy changes, and cannot make other instrumental changes at work. However, they are more likely than supervisors to be able to provide the lateral, peer-like social support that has been found to serve as a protective factor for TGDNB individuals’ health and wellbeing (Dowers et al., 2020 ). Consequently, we posit that broad perceptions of life satisfaction will be related to perceptions of coworker supportiveness. As such, coworkers may be more central in contributing to individuals’ overall assessment of satisfaction across multiple domains rather than to the specific job per se.

Hypothesis 4: Interpersonal support mediates the relationship between affirming behaviors and job and life satisfaction, such that: (4a) supervisor support mediates the relationship between affirming behaviors (using gender-affirming pronouns/titles, discouraging derogation) and job satisfaction, while (4b) coworker support mediates the relationship between affirming behaviors (gender-affirming pronouns and titles) and life satisfaction.

A less interpersonal, but nonetheless important, support mechanism is the extent to which an organization’s climate is transgender supportive. Unlike the interpersonal dyadic nature of supervisor and coworker support, organizational climate represents a more ubiquitous show of support by one’s organization and the central figures within it. A supportive climate describes shared perceptions of a mutually cooperative work environment (Jones & James, 1979 ). Based on the concept of an LGB climate (Liddle et al., 2004 ), a transgender-specific organizational climate falls along a continuum from actively supportive to openly hostile. These perceptions come from both formal and informal policies, practices, norms and behaviors that occur in the workplace environment. In most cases, this TGDNB-specific supportive climate, when it is positive, provides TGDNB employees with a feeling of safety within their work environment. Unlike other support sources (e.g., supervisor support), this unique type of support provides TGDNB employees an environment where they can be their authentic selves. As Ozturk and Tatli ( 2016 ) noted, “disclosure in itself is not a panacea against discrimination, rather it is the organizational reception of gender identity diversity that shapes the disclosure outcomes” (p. 797). Misreading support and revealing an otherwise invisible stigma can have non-trivial consequences (e.g., Ragins et al., 2007 ) - consequences that are likely to be even more dramatic in a particularly unsupportive climate (Badgett et al., 2009 ).

Finally, research on LGB employees has found that an LGB-specific supportive culture was related to individuals’ openness at work (Huffman et al., 2008 ). Similar findings likely exist for TGDNB employees, as gender identity openness represents a critically important outcome to most TGDNB employees. The extent of TGDNB employees’ comfort being their authentic self at work is likely centrally related to their perceptions of the supportiveness of the culture into which they would ‘come out’.

Hypothesis 5: Transgender-specific organizational climate mediates the relationship between affirming behaviors (gender-affirming pronouns/titles) and gender identity openness.

To summarize, our proposed model ( Figure 1 ) suggests that three critical affirming behaviors are differentially related to key outcomes through unique support mechanisms. Additionally, we heed recent suggestions (e.g., Dowers et al., 2020 ) regarding the importance of inclusive and explorative approaches to research on TGDNB support, as well as cautions that quantitative inventories alone may be insufficient in capturing “the emic nature of social support for [TGDNB] individuals” (p. 242). That is, we supplemented our quantitative analysis with an opportunity for respondents to qualitatively indicate other factors that are important in fostering a trans-friendly work environment.

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Mediation model of affirming behaviors’ impact on outcomes through differential support mechanisms.

Note: All modeled paths are significant at p<.001 with the exception of discouraging derogatory comments → supervisor support (p=.52), bathroom spaces → climate (p=.09), and supervisor support → life satisfaction (p=.53).

Research Question: What behaviors do TGDNB employees report are the most important for a trans-friendly work environment?

Participants and procedure

All study participants were volunteers who were briefed about the purpose of the study and provided their informed consent. The study protocol was reviewed and approved by the first author’s affiliated university’s Institutional Review Board. We recruited participants from trans-related social media groups, inviting TGDNB-identifying employees to participate in the study. Such an approach to sampling is considered an appropriate way to access minority or vulnerable populations, “including sexual minorities who are often difficult to identify and access” (Ozturk & Tatli, 2016 , p. 787). A link to a survey was posted on social media groups. Initially 372 respondents, all TGDNB, initiated the survey; 109 were removed prior to analyses due to systematically missing data. The final sample (N = 263) completed an online survey which included both closed-ended (used for quantitative analysis) and open-ended (used for quantitative analysis) questions. Eighty-one percent (n = 213) of the sample provided answers to both the open-ended questions and the quantitative questions. Of these, 59% (153) had transitioned or were in the process of transitioning at work, 10% (26) had not transitioned at work but planned to, and 8% (20) had not transitioned at work and did not plan to do so. 58% (153) used she/her pronouns, 24% (63) used he/him, 12% (32) used they/them, and 6% (15) used other pronouns (e.g., xe/xem). Sixty-two percent (162) were assigned male at birth, 36% (95) were assigned female at birth, and 2% (6) indicated that they were born other or intersex. Ninety-two percent (243) of participants were white, 61% (159) had a college degree or higher, and they worked an average of 39.54 (SD = 13.05) hours/week.

Unless otherwise noted, responses were on a scale from 1 ( strongly disagree ) to 5 ( strongly agree ). Means, standard deviations, Cronbach coefficient alpha reliability estimates (ranging from α =.89 to .95), and correlation coefficients for all study variables (all significant at p <.01) can be found in Table 1 .

Means (M), standard deviations (SD), reliability coefficientsa and correlations.

Notes. AB = Affirming Behaviors; GA = Gender-affirming. Cronbach’s α reliability coefficients are presented in the main diagonal in parentheses. All correlations are significant at p <.01 (two-tailed).

Supervisor support was assessed using Eisenberger et al. ( 1986 ) 8-item work supervisor support scale. A sample item is, “My supervisor really cares about my well-being.”

Coworker support was assessed with the seven-item Coworker Support Scale (Baruch-Feldman et al., 2002 ). A sample item is, “The people I work with encourage each other to work together.”

Transgender specific support was measured using a revised scale based on Liddle et al. ( 2004 ) Lesbian, Gay, Bisexual and Transgender Climate Inventory. This 20-item scale was revised to focus specifically on transgender employees in their current workplace. A sample item is, “Transgender employees fear job loss because of their status as trans.” Responses ranged from 1 ( doesn’t describe at all ) to 5 ( describes extremely well ).

Gender-affirming behaviors were assessed via four items developed for this study that asked about behaviors that affirm one’s identity in the workplace. The stem, “How do persons at your work affirm your trans identity” preceded four behavioral options : (1) “They use correct pronouns (a.k.a., those that align with your gender identity)”; (2) “They provide safe bathroom spaces (i.e., you are able to use a bathroom that aligns with your gender identity or a gender neutral bathroom)”; (3) “They refer to you with affirming titles (e.g., if you are male , you may be referred to as “dude”/“man”/“bro”/“sir”)”; and (4) “They discourage the use of derogatory remarks” Responses were given in a check-all-that-apply format, and were dichotomous such that participants reported whether these behaviors existed (1) or did not exist (0).

Life satisfaction was assessed using Diener et al. ( 1985 ) five-item scale. A sample item is, “In most ways my life is close to my ideal”.

Job satisfaction was assessed using Cammann et al. ( 1983 ) three-item measure. A sample item is, “All in all, I am satisfied with my job.”

Gender identity openness was measured with the three-item openness of transgender scale (Ruggs et al., 2015 ), adapted from Griffeth and Hebl’s (2002) disclosure scale. A sample item is, “At work, I tell people that I am gender variant if it comes up.”

Qualitative Data . Finally, we asked the following open-ended question so as to center participants’ own experiences and ensure comprehensive content coverage: “What could your employer do to make the work environment more transgender-friendly?”

Quantitative analyses

Model fit and functioning.

The proposed structural equation model (see Figure 1 , Research Question) was tested with AMOS 24 (Arbuckle, 2016 ). Error terms for affirming behaviors and support sources were set to intercorrelate as informed by conceptual justification that they should relate as well as statistical considerations such as modification indices (Anderson & Gerbing, 1988 ). The model demonstrated excellent fit to the data [χ 2 (19) = 46.92, p < .001, CFI = .97, TLI = .93, IFI = .97, NFI = .95, RMSEA = .07]. See Table 2 for standardized direct, indirect, and total effects.

Standardized direct, indirect, and total effects.

Note. AB = Affirming Behaviors; GA = Gender-affirming.

Trans-supportive behaviors

All correlations were significant in the expected direction (see Table 1 ). Using SPSS 25 we examined tangible support behaviors to better understand what behaviors are perceived as most beneficial from various sources of support. Prior to analyzing hypotheses 1-3, a multiple response set was created to consider all possible affirming behaviors comparatively, since they were assessed in a check-all-that-apply format. We recoded the variables to indicate that the behavior was present (1) or not present (0). Frequency results on the multiple response set indicated that a majority of participants perceived multiple affirming behaviors from their workplace (84%, use of gender-affirming pronouns; 64%, gender-affirming titles; 77%, safe bathroom spaces; 67%, discouraging use of derogatory remarks). Supporting hypothesis 1, the use of gender-affirming pronouns and titles were related to perceptions of (a) supervisor supportiveness (β = .21, p < .01), (b) coworker supportiveness (β = .38, p < .001), and (c) a transgender-supportive organizational climate (β = .49, p < .001). Hypothesis 2 was partially supported such that the discouragement of derogatory comments was (a) not related to supervisor supportiveness perceptions (β = .03, p = ns ), but were (b) related to perceptions of a transgender-supportive organizational climate (β = .15, p < .05). Hypothesis 3 was not supported, as access to bathroom spaces was not related to transgender-friendly organizational culture (β = .09, p = ns).

Sources of support

Hypothesis 4 predicted that interpersonal supports (supervisor, coworker) mediated the relationships between affirming behaviors (gender-affirming pronouns/titles, discouraging derogation) and job and life satisfaction. While this was the case for usage of gender-affirming pronouns and titles (job satisfaction, β = .23, p < .001; life satisfaction, β = .15, p < .05), it was not the case for discouraging derogatory comments (β = .01, p = ns). Moreover, while the effect of affirming behaviors on life satisfaction was mediated solely through coworker support (β = .15, p < .05; supervisor support β = .06, p < .ns), supporting H4a, job satisfaction was mediated through both supervisor (β = .12, p < .05) and coworker (β = .23, p < .001) support, partially supporting H4b. This is consistent with the direct effects suggesting that supervisor support was significantly related to job satisfaction (β = .28, p < .001), but not life satisfaction (β = .05, p = .53), while coworker support was related to both job (β = .45, p < .001) and life satisfaction (β = .38, p < .001).

Hypothesis 5 was partially supported such that transgender-specific organizational climate was significantly related to gender identity openness at work (β = .55, p < .001) and mediated the relationship between affirming behaviors and openness for gender-affirming pronouns and titles (β = .27, p < .001), though less so for bathroom spaces and discouraging derogation (β = .05 and .08 respectively, p = ns).

Alternative model testing

To ensure thorough consideration of the accuracy of our proposed model, we also examined a conceptually plausible alternative model in which an organization’s climate and perceived supervisor/coworker support facilitate gender identity openness, which in turn precede job and life satisfaction. Results indicated that this alternative model did not fit the data [χ2(19) = 224.57, p < .001, CFI = .78, TLI = .49, IFI = .79, NFI = .77, RMSEA = .20], and was a statistically worse fit than our proposed model [proposed model, AIC = 116.92, BCC = 119.70; alternative model, AIC = 294.57, BCC = 297.35]. These results offer further support of the appropriateness of the proposed model as well as its comparative accuracy.

Qualitative analyses

Analysis plan.

Given our interest in workplace inclusivity of TGDNB employees, we evaluated the themes that emerged when asking the question: “What could your employer do to make the work environment more transgender friendly?” We systematically coded and classified responses to this open-ended question using qualitative content analysis, which also allowed us to produce a description and interpretation of the resulting categories, including frequency of occurrence (Cho & Lee, 2014 ). In order to capture emerging themes, we used an inductive coding strategy to identify additional content in the responses. After coders had reviewed the questions and developed a preliminary familiarity with the data, they distinguished between common and unique responses. From the common responses, we identified preliminary categories and then examined the content of the responses for their presence or absence. Content that could not be coded into one of the predetermined categories was inductively coded into new categories. The authors independently coded all responses. Coding differences were discussed and used to refine the coding frames and to develop additional insight into the emerging themes. There was a relatively high agreement rate (96%) during the initial coding process; coders discussed and resolved any discrepancies systematically, ultimately reaching 100% agreement.

We identified nine themes ( Table 3 ) over 213 qualitative responses: (1) training and education, (2) workplace policies, (3) workplace inclusivity, (4) medical benefits, (5) worker identification, (6) bathroom accommodations, (7) human resource selection practices, (8) general positive attitudes/perceptions, and (9) general negative attitudes/perceptions. Once themes were identified, we revisited the raw data and coded each response to the themes each best represented. We next offer an overview of participants’ general perceptions of their current workplace, followed by a discussion of specific actions respondents recommended to make work environments more trans-friendly, discussing each in order of frequency mentioned. Each quote is followed by the following information in parentheses: Participant number and their self-reported gender identity.

Description and frequency of study themes.

Note : Some responses align with multiple themes; 23 of the responses were not reported since they did not clearly answer the question.

General perceptions of the workplace

Of all respondents, 18.8% reported no problems in their workplace or that positive changes had already been made to make the culture more “trans friendly.” For example, one respondent stated, “ They have done a lot already. There is not much more they can do. Keep doing what they are doing; eventually it will grow to a point that trans folks in the workplace will be the norm ” (#31, female). Another indicated that gender identity was not an issue: “ They accommodate my specific needs of providing correct uniform and private place to change. I also appreciate that my HR manager has informed me that if any coworker acts inappropriate or hostile toward me to let him know immediately so it can be dealt with ” (#37, two-spirit).

However, 4.7% of all respondents stated feelings of hopelessness, with perceptions indicative of a toxic work culture. For example, one respondent stated, “ Aside from not dismissing me from the ranks??? An actual culture of acceptance instead of empty platitudes and promises ” (#62, not reported). Diversity training was also mentioned: “ They've tried diversity training, but it devolved into a joke ” (#192, predominately masculine, but visually identifiable as female). Comments related to general perceptions of the workplace provided insight into the general culture, but did not provide ideas on what could be done to increase the transgender friendliness of the work environment.

Specific organizational actions

As reported previously, about 25% of all respondents did not offer specific strategies for improvements, and instead, indicated that there were no problems, that any problems were currently being addressed, or reported a general sense of hopelessness that any actions would be effective. The majority of the participants provided specific suggestions for strategies to increase the transgender friendliness of their work environments.

Diversity training/education

The most common management strategies suggested were diversity training and education, with 32.4% of respondents highlighting this as a need. Some stressed the value of and need for any education (e.g., “ Literally any education whatsoever. It's a small business run by people who have no knowledge of gender beyond hysteria surrounding trans women and bathroom policies. They don't understand even the basics of sex and gender identity ”; #160, femme agender) whereas some noted the need for trans-specific training (e.g., " Diversity training, further education for management on how to be more sensitive to trans/gender non-conforming individuals ”; #51, Nonbinary, gender neutral, femme). Others offered specificity in training recommendations (e.g., “ Training on what to expect if a coworker would come out as transgender ” [#24, man]; “ Provide some formal training so that basic things like pronouns and acceptable topics of conversation are understood by everyone in the workplace ” [#43, woman]).

Policy development, clarification, and enforcement

Almost a third (32.4%) of respondents reported that their organization needs to develop, clarify, or enforce policies and procedures related to transgender employees. Regarding the former, one respondent recommended that companies “ mention the word ‘Transgender’ in their policies ” (#61, not reported). Similarly, another stated, “ being a small company, they don't have any specific policy for supporting gender variant employees. It would be nice if they had formal documentation, policies and practices ” (#110, gender non-conforming). Nevertheless, enforcement was the most common suggestion within this theme. For example, respondents made comments such as: “ Actually embrace and enforce the policies that the [organization] has adopted rather than just ignoring them ” (#21, transitioning from genetic male to my true self female) and “ Re[garding] past position at large company - actually enforce the policies already on the books… they are simply shelf ware to meet legal requirements but they count on the fact trans employees won't rock the boat once they are hired ” (#144, transmasculine).

Inclusivity and culture

Almost one-fifth (19.9%) of respondents described the need for more inclusion of TGDNB employees in company practices and norms. This theme captures both individual-level inclusion (e.g., “[It would be nice to be] included socially - lunch, dinner, social conversation ”; #33, transsexual) and organization-wide inclusion (e.g., “ I think that if the company did something to celebrate Pride month, etc. that would show they're more open to LGBTQ individuals ” [#79, male]). Respondents described examples of transitioning at work that illustrated both positive and negative experiences. For example, a respondent who had a positive experience stated: “… to announce my transition to my fellow coworkers…an HR manager who was more knowledgeable…helped to make sure the managers in my department followed my wishes on how my transition was announced to the staff ” (#64, female). A respondent who had a negative experience stated: “ When I came out, my director would not let me email the entire department … rather, I just ‘showed up’ one day dressed as the woman I am. This led to questions over this entire past year ” (#84, transwomen).

Trans identification

The proper use of one’s identity was mentioned by 13.1% of respondents. Identification was deemed important for many aspects of the job, including online profiles, HR files, employee uniforms, identification to external clients, pronoun usage, and titles. One respondent suggested that the organization, “ Go over how to address and not address those issues with people, like not to call everyone ‘sir’ and ‘ma'am’, especially when you're unsure how they identify ” (#191, at least 90% male), and “ include pronouns as a regular part of discussion and email tags ” (#5, trans man). Another respondent recommended that organizations, “ Have the proper uniforms allocated as per gender identification, or make uniforms gender neutral ” (#10, female to the core).

Medical benefits

Twenty-six (12.2%) respondents mentioned the need for transgender-inclusive medical benefits as an important factor in creating a trans-friendly organization. Some noted the need for broad medical support (e.g., “ Update health insurance to include coverage for all transgender-related health care, including surgery ”; #103, fluctuating between feminine and gender-neutral depending on mood, feeling, or mode of personality). Others noted needs for improvements in how such benefits are managed (e.g., “ Provide better transgender health care - on paper, they supposedly do, but accessing the care requires lots of gate-keeping and abusive practices by the insurance company …”; #98, trans-masculine non-binary).

Bathroom accommodations

Almost nine-percent (8.5%) of respondents noted a need to establish or improve accessibility of workplace bathroom accommodations. Some respondents stated the need for gender neutral bathrooms (e.g., “ Have gender-neutral bathrooms ”, #25, man; “ All gender or single occupancy bathrooms at a minimum ”; #51, trans masculine). Others commented on the need for more, more convenient, or more explicit gender-neutral bathrooms. One respondent stated: “ More gender-neutral restrooms would be ideal. There are some in the building but they are a bit out of the way. It's not too much of an issue because every floor has restrooms and it could be "easier" to find a floor with an empty restroom instead ” (#95, transmasculine). Whereas another stated: “ Explicitly gender-neutral bathrooms would help - I haven't had any trouble using the appropriate one but there were times when I worried about it ” (#144, trans woman).

Human resource/selection

Although TGDNB representation was one of the least endorsed themes (8.5%), it still emerged as an important contributor to a trans-friendly work environment. One respondent stated, “ We need to hire more trans [employees] at my workplace. We have made huge strides toward being trans inclusive and working to educate individuals ” (#38, transman). Another respondent stated, “ Hire more trans employees - I believe I am the only trans employee in my building ” (#50, woman).

Lack of proper organizational support, broadly defined, is one of the central factors predicting negative outcomes for TGDNB employees (Dietert & Dentice, 2009 ; Ozturk & Tatli, 2016 ). We found the primary behaviors that were important in all three categories of support (i.e., supervisor support, transgender-supportive organizational climate, coworker support) was use of gender-affirming pronouns/titles. This suggests that being properly addressed is a higher-level human need which links to stronger feelings of self-esteem, confidence, and self-respect. This finding may also highlight that names/proper title usage is central to other’s acceptance of who a person is, as opposed to, say, access bathroom spaces, which may not be indicative of any underlying cultural support, but satisfies physiological needs. Further, such affirmations are explicitly positive – as opposed to, for example, discouraging derogatory comments, which are inherently grounded in the assumption of a negative culture, may have a layer of legal consideration (i.e., a supervisor could be non-supportive of TGDNB individuals, yet feel obligated to discourage negative comments to avoid potential litigation), and may be a consequence of “politeness” culture, where management discourages any and all negative comments. In other words, findings suggest that reactive protection may not be viewed as supportive; rather, it may be that only proactive support and affirmation is viewed as genuinely supportive enough to impact meaningful distal outcomes.

Given that reactive protection may not be sufficient, we examined workplace experiences of TGDNB employees with a focus on specific, actionable support behaviors that can help create an environment where TGDNB employees can be open about their gender identities and feel satisfied both on and off the job. To this end, it is suggested that specific affirming behaviors are differentially related to sources of support, which in turn are differentially related to job satisfaction, life satisfaction, and gender identity openness at work. Interestingly, access to safe bathroom spaces was not significantly related to perceptions of a supportive organizational climate. This may be because this particularly tangible accommodation may be perceived by many as more of a basic right than indicative of a genuinely supportive culture. That is, it is comparatively easy for an organization to make a one-time decision and investment in a gender-inclusive bathroom space, as opposed to the more continual exhibitions of support that are characteristic of meaningful affirming behaviors. Moreover, such a bathroom space could be a single stall that is compliant under the Americans with Disabilities Act (ADA), and not gender-specific, per se. As such, this “accommodation” may not be deemed indicative of a transgender-supportive climate.

Results also showed that although supervisor support was related exclusively to job satisfaction, coworker support was related to both life and job satisfaction. These findings emphasize the importance of the instrumental role played by supervisors in structuring and ensuring a TGDNB-supportive employee experience. It also emphasizes that coworkers may be particularly central to TGDNB employees’ experiences in the workplace from both a structural and a socioemotional perspective. Further, transgender-specific organizational climate was most related to gender identity openness and qualitative results provided additional context regarding proper support mechanisms for TGDNB employees. When asked about strategies to make the work environment more transgender friendly, seven strategic themes–training and education, work policies, workplace inclusivity, medical benefits, worker identification, bathroom accommodations, and human resource selection practices–emerged. The ‘good news’ is that general attitudes toward these issues reflected more positive (18.8%) than negative (4.7%) comments. Yet the majority of respondents nevertheless recommended important strategies to improve the workplace for TGDNB employees, suggesting the work is far from done.

It is noteworthy that when we compared the ideas that organically emerged from the qualitative data, and the three affirming behaviors that we presented to respondents in the survey (i.e., gender-affirming pronoun/title usage, bathroom access, discouraging derogatory comments), there were some additional behaviors highlighted as important by those actually needing the support. In particular, “medical benefits” and “human resource/selection issues” were identified as support behaviors that organizations should consider. The need for medical benefits is not surprising as there has been much written about the importance of providing comprehensive medical benefits for TGDNB employees, including a resolution by the American Medical Association supporting public and private health insurance coverage to remove financial barriers to care for transgender patients (American Medical Association, 2016 ). Human resource/selection issues of TGDNB employees, on the other hand, have received much less attention. This may actually be a strategy to alleviate some of the other issues as more members of a minority group are hired, their needs are more likely to be addressed. So, clarifying quantitative data with qualitative data is particularly helpful when trying to interpret those quantitative results, especially when considering understudied populations.

Theoretical and practical implications

The findings provide important initial guidance for overcoming deficits (Ozturk & Tatli, 2016 ) among key organizational sources of support (e.g., supervisors, coworkers) for TGDNB workers, and demonstrating the extent to which, and how, various supportive behaviors and sources of support are differentially linked to employee outcomes. For example, if job satisfaction is low, especially among TGDNB employees, the organization should focus on strategies wherein the TGDNB individual’s immediate supervisor can increase manifest support (e.g., supervisor training, sensitivity training). On the other hand, if TGDNB employees are reporting discomfort being their authentic selves at work, management should focus on strategies that will help create a more TGDNB-friendly culture, such as introducing a revised or gender-neutral dress code.

The findings that coworker support was related to both job and life satisfaction speaks to the importance of coworkers and the meaningfulness of colleague-to-colleague relationships. Taken together, these results provide clear guidance regarding the support strengths of each source, thereby allowing those in potentially supportive roles to better capitalize on the characteristics of their role to maximize support. Likewise, organizations can introduce important informal or formal support offerings (e.g., mentorship programs) as a means to capitalize on the inherent strengths of such relationships. These types of strategies should help TGDNB employees build connections at work, foster better respect from others, and be better positioned to make professional achievements at work. It is also in line with recent research (e.g., Dowers et al., 2020 ) emphasizing the importance of lateral, peer-like social support as one of the most critical and consistently reported correlates of TGDNB individuals’ health and wellbeing. While the majority of the research surrounding such peer-like social support has focused on nonwork others such as family and friends, the findings suggest that similar patterns may also be evident in the workplace, and hones in on coworkers as key lateral others who may have varied and far-reaching implications even beyond the workplace.

In terms of practical action, two main strategies that emerged from the qualitative data were the needs for diversity training/education and improved policy/procedures. Interestingly, these are among the most popular strategies that many organizations have already adopted when attempting to improve TGDNB inclusion. Nevertheless, many TGDNB employee concerns expressed in the qualitative data emphasized the need for useful and authentic training, and the enforcement of polices. So, although the structural elements might be straightforward, the challenging part may be ensuring that any trainings are relevant and taken seriously, and that the policies are properly enforced. This is a common consideration in organizational science and its translation into practice, which is all too often stunted when policies are ‘on the books’ yet not authentically enacted or fully embedded in the organizational culture. The qualitative findings herein highlighted the extent to which this is particularly problematic for policies addressing marginalized populations such as TGDNB employees, and the importance of organizational aligning their policy-making with their actual authentic values. To that end, it is likewise vital for supervisors to proactively support TGDNB employees via educating all employees regarding appropriate behavioral and social standards, as well as actively patrolling and curtailing inappropriate behaviors.

Ultimately, it is not surprising that inclusivity and friendliness were deemed very important to TGDNB workers, who likewise reported that they wish they were more often included in organizational social events and conversations. This high-level inclusion likely comes after TGDNB-friendly organizational structures become normalized in the organization (e.g., training, policies, accessible bathrooms, and human resource practices are already in place). That is, inclusive policies are a necessary but not sufficient condition for TGDNB employees to feel supported at work and to in turn see the more distal benefits that such support engenders both within and beyond the workplace. In order for that to happen, organizations must come to realize that greater inclusivity is a “win-win” that has myriad benefits, including reduced stigma for marginalized employees, a more positive and inclusive organizational culture, and improved employee wellbeing and employee attitudes and experiences. The results suggest this is the case, and can serve as initial empirical support for organizations looking for such quantitative evidence.

Limitations and future research directions

Despite the study’s strengths, which includes the identification of realistic actionable practices to improve the lived workplace experiences of this widely overlooked population, the study nonetheless has some notable limitations. One potential limitation of our study is that we did not ascertain firm-level differences (e.g., firm size, type of firm, type of industry), which could explain additional variance. A theme that emerged from the qualitative data was that support appears to be different for large versus small or family businesses. Thus, the size and type of business in the context of TGDNB support is a critical area for future research to focus upon. Another potential limitation is the self-reported and cross-sectional nature of the data. It should be mentioned, however, that the constructs of interest necessitate self-reporting by virtue of their perceptual and internal nature. Additionally, a Harman’s single-factor test for common method variance indicated multiple strong factors, suggesting that mono-method bias is unlikely. Nonetheless, future researchers could incorporate a dyadic or multi-source methodology to include supervisor and coworker experiences as well as perceptions and experiences of TGDNB colleagues.

It would likewise be beneficial to extend the conceptualization of support to include support sources that are outside the workplace. Family and friends serve as important nonwork sources of interpersonal support, as can more structured sources, such as support groups or trans-only networks. Future researchers should draw upon social and clinical psychological theories and extant research to inform the consideration of a wider range of support sources both internal and external to the work environment. It may be that external sources of support serve a moderating role that has a protective effect on the relationship between unsupportive behaviors (or explicitly discriminatory behaviors) and work/nonwork outcomes. Similarly, while we focused on individual-level perceptions of support within ones’ organization, it would also be prudent to examine perceptions of support at different levels, say at the regional (e.g., city, state) or community level. Tebbe et al. ( 2019 ) work suggests that TGDNB employees are not only affected by protections and support at work, but also by the protections of local and state entities.

Almost 20% of respondents had positive comments about their workplace in terms of being TGDNB friendly. Future research should draw upon experiences of employees in positive TGDNB environments to better learn how to achieve this state for all organizations. The Human Rights Campaign ( 2019 ), for example, ranked over 500 businesses to build a LGBTQ Corporate Equality Index. Understanding what organizations currently do (and do not do) can contribute to the understanding of how organizations can achieve TGDNB-friendly status. For example, future research that identifies similarities across “good” organizations, including similar practices, policies, and structural characteristics, with special consideration of how ‘trans-friendliness’ is measured and monitored would be especially powerful.

Qualitative results revealed that there is still a great need for managers and supervisors to be educated on the needs of TGDNB employees. To reach this goal, researchers could draw upon Hammer et al. ( 2005 ) family supportive supervisor behavior intervention that focuses on training supervisors on specific behaviors that provide support for employees who have families. Recently Hammer et al. ( 2019 ) extended their work to evidence its effectiveness among specific populations (e.g., veterans), suggesting that such an intervention might likewise prove valuable for improving organizations’ TGDNB supportiveness.

Many people grow up learning the Golden Rule: “Do unto others as you would want done to you.” This mantra has been widely recommended as a guiding principle to effective organizational practice and employee management (e.g., Reichheld, 2011 ). However, Kerpen ( 2013 ) argues that the Golden Rule is insufficient in that everyone is different and, as such, one’s preferences for treatment may be different from others. For this reason, he suggests organizational leaders instead follow the Platinum Rule: “Do unto others as they would want done to them.” It is with this in mind that we sought input directly from TGDNB employees to better understand their needs and desires with regard to organizational and social support. By dissecting different behavioral support options alongside potential support sources, we contribute to helping those within organizations with the power to provide resources to better empower and enrich their transgender and gender non-conforming colleagues’ workplace experiences. This position is nicely summed up by one participant (#96, not reported), who stated, “I don't have the words to express what I'd like to express. I wish I could let them understand just how important the little things like pronouns and bathroom access really are, and encourage them to fight for them too”.

Acknowledgements

The authors would like to thank graduate assistants Patrick Doyle and Lisa Fleming for their work in support of this research.

Correction Statement

This article has been republished with minor changes. These changes do not impact the academic content of the article.

Declaration of interest

The authors declare that they have no conflicts of interest.

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States Passed a Record Number of Transgender Laws. Here’s What They Say.

Many of the bills denied certain medical care to transgender people, while others targeted bathroom use and preferred personal pronouns.

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A large crowd of people, many holding signs, stands outside near the Kentucky Capitol building.

By Adeel Hassan

Adeel Hassan read through dozens of state laws and spoke with law professors about the implications of the new legislation.

Statehouses around the country this year have been consumed by fights over laws governing transgender people.

Seventeen states during their most recent legislative sessions passed restrictions on medical care for transgender people, joining just three other states that passed similar bans in the last two years. A series of other laws passed regulate which bathrooms transgender people can use and whether schools can affirm transgender children’s identities.

Already many of these laws are being challenged in court, and judges are scrutinizing their precise wording. A federal judge in Arkansas last week struck down that state’s law forbidding medical treatments for children and teenagers seeking gender transitions. Earlier this month, a Florida judge sided with families seeking to block the state’s law banning gender transition care for minors, saying that the ban is likely to be found to be unconstitutional.

Amid the fighting, it’s easy to overlook the text of the laws themselves, which can get clinical very quickly.

So what’s actually in these bills? Here is a closer look at the language.

Many states have banned medical treatments and various surgical procedures for minors.

Laws banning gender-transition care for minors have been enacted in 20 states; Alabama, Arkansas, Tennessee and Arizona enacted bans before 2023, though Arkansas’s was recently struck down. Arizona’s law focuses on surgical procedures, but the rest extend the ban to other treatments, including puberty blockers and hormones.

Out of an estimated 1.6 million Americans who are transgender, about 300,000 are under 18. A small number get surgery as part of their transition, but it is much more common for children to transition socially — changing their name, clothing, haircut or other parts of their appearance and identity — and through the use of puberty-delaying medications or hormones.

Often these laws lay out a broad list of procedures. Indiana’s law, for example, includes mastectomies but also mentions procedures like liposuction and hair reconstruction. The legislation specifies that these procedures are banned for minors only if they are for the specific purpose of gender transition.

Sec. 8. As used in this chapter, “non genital gender reassignment surgery” means medical procedures knowingly performed for the purpose of assisting an individual with a gender transition , including the following: (1) Surgical procedures for a male sex patient, including augmentation mammoplasty, facial feminization surgery, liposuction, lipofilling, voice surgery, thyroid cartilage reduction, gluteal augmentation, hair reconstruction, or associated aesthetic procedures. (2) Surgical procedures for a female sex patient, including subcutaneous mastectomy, voice surgery, liposuction, lipofilling, pectoral implants, or associated aesthetic procedures.

Indiana SEA 480

Genital surgery for minors is extremely rare. Top surgery — breast augmentation or removal — for minors is performed more often but is still very uncommon.

Proponents of the bans argue that these operations can be harmful and that children are not mature enough to make decisions about such procedures.

Leading medical organizations oppose bans on transition care, citing extensive evidence that such treatment leads to better mental health outcomes, and associating a lack of treatment with higher rates depression.

A few states passed laws that will also affect adults.

While most of these laws focus on treatments for minors, some states included provisions that will also create obstacles for transgender adults seeking transition treatments.

Florida’s law includes several restrictions, including requiring that medication like puberty blockers be prescribed in person by a physician. Many transgender people receive their prescriptions via telehealth and from nurse practitioners.

(3) Sex-reassignment prescriptions or procedures may not be prescribed, administered, or performed except by a physician . For the purposes of this section, the term “physician” is defined as a physician licensed under chapter 458 or chapter 459 or a physician practicing medicine or osteopathic medicine in the employment of the Federal Government.

Florida SB 254

Laws in both Florida and Missouri prevent Medicaid from covering transition care, which could make it harder for transgender adults to afford treatments and surgeries.

Some states have created strict penalties for providers who break the law.

Many states have defined the act of providing surgeries and medical care to transgender minors as “unprofessional conduct,” which could jeopardize a doctor’s ability to practice medicine.

Some states added potential penalties for people beyond doctors. For example, Indiana and Mississippi outline legal consequences for doctors and others who “aid or abet” in administering care. This language is similar to abortion bans that include legal penalties for providers or others who “aid or abet” someone receiving an abortion.

SECTION 3. (1) A person shall not knowingly provide gender transition procedures to any person under eighteen (18) years of age. (2) A person shall not knowingly engage in conduct that aids or abets the performance or inducement of gender transition procedures to any person under eighteen (18) years of age. This subsection may not be construed to impose liability on any speech protected by federal or state law.

Mississippi HB 1125

“In some states, such as Mississippi, the ‘aid or abet’ language is very broad,” said Elana Redfield, the federal policy director of the Williams Institute at the law school of the University of California, Los Angeles, “and could conceivably subject parents or allies to liability.”

And Montana’s ban allows people who receive care to sue their provider for up to 25 years after the procedure if they claim they were harmed by it.

While most of the laws passed this year do not include criminal liability, last month Florida joined at least four other states that make providing such care a felony. Florida’s law penalizes doctors who violate the law with up to five years in prison. It also changes child custody rules to treat transition care as equivalent to child abuse.

“It is wrong to be sexualizing these kids,” Gov. Ron DeSantis said at the signing. “It’s wrong to have gender ideology and telling kids that they may have been born in the wrong body.”

To enforce these laws, states are defining “male” and “female.”

Both as part of the medical bans and sometimes as separate laws, states are strictly defining “male” and “female.” This could prevent transgender people from receiving identification that matches their identity and appearance.

Tennessee’s law defining sex goes into effect on July 1, and would prevent anyone from changing the sex on their birth certificate and driver’s license. This can create challenges for transgender people when they need to, say, vote or apply for a library card.

(c) As used in this code, "sex" means a person's immutable biological sex as determined by anatomy and genetics existing at the time of birth and evidence of a person's biological sex . As used in this subsection (c), "evidence of a person's biological sex" includes, but is not limited to, a government-issued identification document that accurately reflects a person's sex listed on the person's original birth certificate.

Tennessee SB 1440

Research points to other consequences, including higher levels of anxiety and depression for transgender people who have an inconsistency between their documents and their gender identity.

There is some acknowledgment in the laws, though, that sex is not always binary. Most of the bans or restrictions include exceptions for intersex people who need or opt for medical treatments and surgery. Roughly 0.5 to 2 percent of the population has some intersex condition , meaning a person is born with chromosomes, hormones or sexual anatomy that differs from what is considered typical for males and females.

Nearly half of all states enacted laws banning transgender women and girls from playing on female teams.

At least 21 states, including North Dakota, specifically exclude transgender women and girls from participating in sports consistent with their gender identity. Five of those states extend the bans to transgender boys. All of the bans apply to high schools, and most states include colleges in their bans.

2. An athletic team or sport designated for “females”, “women”, or “girls” may not be open to students of the male sex. 3. This section may not be construed to restrict the eligibility of a student to participate in interscholastic or intramural athletic teams or sports designated as “males”, “men”, or “boys” or designated as “coed” or “mixed”.

North Dakota HB 1249

In Ohio last year, early drafts of the state’s athletic ban , which is still being debated by the legislature, included language requiring a physical examination by a doctor when the sex of an athlete is disputed. That language has since been removed. But it’s unclear in many of the laws how schools and organizations should enforce the bans.

Bathroom laws return, with a focus on school facilities.

In 2016, North Carolina became the first state to pass a bill barring transgender people from using public bathrooms consistent with their gender identity. The law drew nationwide outrage, and companies canceled planned expansions in the state, while the N.B.A. and N.C.A.A. moved events elsewhere. It was repealed in 2017.

But so-called bathroom bills have recently made a comeback in state legislatures. Tennessee passed one in 2021, while Alabama and Oklahoma followed in 2022. At least six states this year enacted laws regulating the use of bathrooms.

Idaho’s law, like many of these laws, targets school restrooms. The law says facilities that can be used by multiple people at once must be designated male or female and may be used only by members of that sex. The reason, it says, is to limit the shame and embarrassment students may feel sharing a restroom with someone of the opposite sex.

(2) Every person has a natural right to privacy and safety in restrooms and changing facilities where such person might be in a partial or full state of undress in the presence of others; (3) This natural right especially applies to students using public school restrooms and changing facilities where student privacy and safety is essential to providing a safe learning environment for all students; (4) Requiring students to share restrooms and changing facilities with members of the opposite biological sex generates potential embarrassment, shame, and psychological injury to students, as well as increasing the likelihood of sexual assault, molestation, rape, voyeurism, and exhibitionism;

Idaho SB 1100

Lawmakers who back such bills say that every child must feel safe in the bathroom and that the laws can help prevent abuse. Multiple studies , however, have shown that transgender people are much more likely to be victims of violence than cisgender people.

“We’ve had a natural experiment going in colleges, universities and high schools for some time” with coed bathrooms, said Katherine Franke, a professor at Columbia University Law School. After all these years, she added, “we haven’t seen any incidence of increased risks to personal security.”

Federal appeals courts have so far been split on the issue. At least two courts have upheld transgender students’ rights to use the bathroom corresponding with their gender identity, and in January one court ruled that a transgender boy was not entitled to use the boys’ bathroom in a public high school in Florida.

Some states extended their laws to include school field trips

Since many of the bathroom bans specifically apply to school facilities, they also often include accommodations on school field trips.

Kansas passed a law specifically targeting school overnight trips, stating that students must have overnight lodging that is separated by sex.

Be it enacted by the Legislature of the State of Kansas: New Section 1. (a) The board of education of each school district shall adopt a policy requiring that separate overnight accommodations be provided for students of each biological sex during school district sponsored travel that requires overnight stays by students. Such policy shall be provided to parents prior to a student’s participation in an activity or travel that requires overnight stays by students.

Kansas HB 2138

Republican legislators passed the law off a report that a female student was assigned to share a room with a transgender student during an overnight trip, and overruled a veto by Gov. Laura Kelly, a Democrat.

“Conservatives who were worried about education were always committed to local school control,” Ms. Franke said. Now they’re “relying on state legislatures, which are taking away that discretion from local school boards.”

A handful of laws directed at schools restrict the discussion of personal pronouns.

At least nine states this year have passed laws regarding how pronouns are handled in school. Florida’s law explicitly prohibits teachers and students from discussing their preferred pronouns.

Kentucky has a law saying teachers can’t be required to use pronouns for students that differ from their sex.

(b) The Kentucky Board of Education or the Kentucky Department of Education shall not require or recommend policies or procedures for the use of pronouns that do not conform to a student's biological sex as indicated on the student's original, unedited birth certificate issued at the time of birth pursuant to KRS 156.070(2)(g)2. (c) A local school district shall not require school personnel or students to use pronouns for students that do not conform to that particular student's biological sex as referenced in paragraph (b) of this subsection.

Kentucky SB 150

Other states, like Indiana, outline “parental rights” policies, requiring that parents be notified when their children request to use a different name or want to be called pronouns that don’t match their sex.

Overall, the many new laws governing transgender children and adults have yet to be tested in everyday life. But already, many are facing lawsuits seeking to stop them.

Nearly half of all the medical bans that have passed are already being challenged in court. A Florida judge issued a limited injunction this month, saying that the state’s medical ban would most likely be found unconstitutional. The judge took issue with the state’s prohibiting treatments “even when medically appropriate.” Texas’ law, which was enacted this month , is also expected to face legal challenges before going into effect in September.

Maggie Astor contributed reporting.

Adeel Hassan is a reporter and editor on the National Desk. He is a founding member of Race/Related , and much of his work focuses on identity and discrimination. He started the Morning Briefing for NYT Now and was its inaugural writer. He also served as an editor on the International Desk.  More about Adeel Hassan

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UK: Employment Law And Non-binary People: What Employers Need To Know

View Zoe  Ingenhaag Biography on their website

In this article, we discuss the current position under the UK Gender Recognition Act 2004 and the Equality Act 2010 and suggest some practical steps employers can take to support employees of all genders.

Over the past decade, there has been a growing awareness that gender identity is not limited to the binary of male or female. Countries such as Canada, Australia, Germany, Nepal, the Netherlands and India already allow citizens to state a non-binary gender category on their passports. Facebook now has 71 different gender options.

The UK's Office for National Statistics is working on collecting official data but, according to estimates, 0.4% of the population could identify as non-binary. That's around 250,000 people in the UK today.

What being non-binary means

Non-binary is a gender identity, meaning someone does not experience gender exclusively as a male or female. The definition offered by the National Center for Transgender Equality, (see  here ) states that some people do not fit neatly into the categories of 'man' or 'woman', or 'male' or 'female'. For instance, some people have a gender that blends elements of being a woman or man, or one that is different than either male or female. Some people don't identify with any gender, while others' gender changes over time.

The NCTE definition adds that people whose gender is not male or female use different terms to describe themselves. In addition to 'non-binary', other terms include 'genderqueer', 'agender' and 'bigender', and there are many more. None of these terms have precisely the same meaning, 'but all speak to an experience of gender that is not simply male or female'. While non-binary people are generally regarded as being within the 'T' community of the LGBT+ acronym, some of them choose not to use 'transgender' as a descriptor because it has connotations with the binary model.

As one of the less well-understood communities under the LGBT+ umbrella, non-binary individuals may be particularly vulnerable to discrimination - including from within the LGBT+ community itself. According to Stonewall's LGBT in Britain Work Report in 2018 , see here, over a third of non-binary people (37%) were not out at work. By way of comparison, the report found that just 4% of lesbians and 7% of gay men were not out at work.

Gender Recognition Act and proposals for reform

In terms of relevant current legislation in this area, the Gender Recognition Act 2004 (GRA) enables transgender people to apply for a Gender Recognition Certificate (GRC) to change their legal gender. The GRA is limited in scope by not recognising any gender identity other than male or female: it does not, for example, accommodate people who have a permanent non-binary gender or a fluid gender. The process prescribed by the GRA, where it does apply, the process has been described as costly, administratively burdensome and intrusive. The GRA has also been criticised (see here ) for pathologising trans people and containing a spousal veto. In 2018, the government revealed that only 4,910 people had legally changed their gender since the GRA came into force, a very small proportion of the UK's trans community.

Whilst a progressive piece of legislation for its time, many now regard the GRA as outdated. In July 2018, the government equalities office opened a consultation on reform (see here) . The questions asked included, among other things, how it might make be made easier for trans people to achieve legal recognition, and whether there should be changes to the GRA to accommodate the growing community of individuals who identify as non-binary. Over 100,000 submissions to the consultation were received.

Two years have now elapsed and there has been no official response from the government to date. It has been recently reported that, despite 70% of respondents to the consultation being in favour of reform, the government might decide to abandon them, although recently Liz Truss stated that plans for GRA reform will 'not be rolling back the rights of transgender people in the UK'. The EHRC states, in its 'position as the nation's equality body' that it is important that, through GRA reform, the process for changing the legal recognition for your gender is 'reviewed, modernised and simplified'.

In another separate but related recent development, a legal challenge to the government's policy of allowing only two gender options on passports recently failed in the Court of Appeal (see here ) which held that this did not amount to an unlawful breach of human rights.

For many people identifying as non-binary. the current state of the law is unsatisfactory, and the state's failure formally to recognise a significant demographic of its population in turn provides a licence for society at large not to 'see' or respect them. It's thought, for example, that employers are not required to understand their non-binary employees in the way they do their binary staff, leading to no such formal expectations on colleagues. This can result in non-binary people experiencing increased anxiety and vulnerability when entering the workplace, as well as when engaging with wider society.

Which discrimination laws might be relevant to non-binary people?

Discrimination can occur in various ways under the Equality Act 2010 (EqA). Most obviously, it includes 'direct discrimination', for example, treating someone badly because of their race, age or disability. 'Harassment', as defined in the EqA, is another form of discrimination which includes anything that creates an intimidating, hostile, degrading, humiliating or offensive environment.

For treatment to be discriminatory, it must relate to one of a fixed set of 'protected characteristics', the two most relevant here being sex and gender reassignment. How far could either of these protected characteristics provide legal protection against discrimination for non-binary people?

Sex discrimination

The EqA clearly defines sex as 'a reference to a man or to a woman', thereby excluding someone who does not identify as either male or female. So, at first glance, there appears to be no protection for non-binary people under sex discrimination legislation.

The definition of harassment under the EqA is, however, broad. It covers any unwanted behaviour which creates an intimidating, hostile, degrading, humiliating or offensive environment related to a protected characteristic. Someone does not need to have the relevant protected characteristic themselves for behaviour to constitute harassment - the behaviour just needs to be 'related to' it. If for example an atheist is offended by a joke a colleague makes about religion, that could constitute harassment.

In a similar way, any discriminatory behaviour which is motivated by someone's non-binary identity might be sufficiently 'related to' the protected characteristic of sex for an Employment Tribunal (ET) to come to a finding of harassment, in that it would be related to them being neither a man nor a woman. There have not yet been any cases on this point, so far as we know.

Gender reassignment discrimination

Under s7 of the EqA, a person has the protected characteristic of gender reassignment if they undergo any part of a process for the purpose of reassigning their sex by changing physiological or other attributes of sex (or if they propose to do so). There is no definition of what a 'process' is in this context, nor what constitute 'attributes of sex'.

Contrary to what is commonly thought, there is no requirement to undergo (or plan to undergo) any medical intervention. The clothes you wear, the pronouns you use, your name or your hairstyle could arguably be 'attributes of sex', so that changing them could bring you within the definition.

Accordingly, non-binary people may be able to claim to have the protected characteristic of gender reassignment provided they have taken steps towards 'reassigning their sex' or propose to do so.

The scope of this protection is limited, however, and will exclude many non-binary people. For example, they may not feel the need to 'transition' in the way the EqA prescribes, and not every non-binary individual may be comfortable using the legal language relating to gender reassignment.

Judicial guidance highlights equality law deficiencies

There is some interesting and useful judicial guidance in this area in the form of the Equal Treatment Bench Book , including the following extracts:

'The gender landscape is rapidly changing. ...UK law has not yet caught up with these social changes, and presently makes express provision only for those who wish to reassign their sex.

'The limited protection of the [EqA], which only covers those who are undergoing or have undergone (or who are perceived to be undergoing or to have undergone) gender reassignment, means non-transitioning, non-binary or otherwise gender non-conforming people are particularly vulnerable.'

'There is a wide range of people who would describe themselves as trans or transgender, non-binary or gender fluid, but who have not undergone and do not propose to undergo gender reassignment. They would not have the protected characteristic of 'gender reassignment' and would not gain the protection under section 7 except perhaps on the basis that they were (wrongly) perceived as having undergone or proposing to undergo gender reassignment. The same might apply to people who cross-dress from time to time. It is arguable, though untested, that individuals in these categories could also claim sex discrimination.'

At the time of its drafting around a decade ago the EqA was a forward-thinking piece of legislation, yet it appears to be already showing its age. Arguably, certain categories of people it should seek to protect are falling through the gaps, with the inadequacy of the law as it stands creating uncertainty for everyone, including employers.

New ruling that 'gender reassignment includes non-binary individuals

On 16 September 2020, Old Square Chambers reported that an Employment Tribunal has found that 'gender reassignment' includes non-binary individuals. The judgement was only given orally and we will provide further details when we have them.

What should employers do now?

As discussed above, the legal position remains unclear at present and will remain this way until there are further developments in the courts and the potential reform of the GRA (and possibly the EqA too). In the meantime, there are various practical steps that employers can take to support employees of all genders:

  • Simple steps like ensuring that employee records include diverse gender options (not just 'male' or 'female') are a good start towards creating a more inclusive workplace.
  • Pronouns: many employers encourage, but don't require, employees to share their pronouns in email signatures. This helps to normalise the conversation around gender and discourage assumptions about colleagues' identities.
  • Internal policies should be worded considerately. For example, parental policies could refer to 'employees on maternity leave' rather than 'mothers'. Employers should carefully consider how to cover trans employees in relevant policies, specifically including non-binary employees.
  • Dress codes can be worded neutrally, rather than having separate codes for men and women. This may help avoid a host of issues, including not just the exclusion of non-binary employees but also potential claims of sex discrimination.
  • Employers could also make a positive statement by marking days like Non-binary People's Day (see here ).

Hopefully the government's response to the consultation on reform of the GRA will be published soon and provide a much-needed catalyst for an overdue overhaul of the laws protecting non-binary people.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Should employers be creating or updating a special leave policy?

  • Michelle Last

Employment law expert Michelle Last look at best practice when drawing up a policy to manage leave requests if there is no statutory right to time off – for example if the employee is undergoing gender reassignment or elective surgery.

Employment law is heavily impacted by the current social and political climate. For example, a more flexible, open attitude to employees has heralded a transition towards requests for alternative types of leave or ‘special leave’. Employers are no longer simply facing requests for time out to care for children, to study or to take a sabbatical. Instead, this brave new world sees requests for time off for breast augmentation, for gender reassignment procedures and to grieve following the death of Tibbles, a much-loved cat. Many employers are now introducing special leave policies to deal with the plethora of unusual requests for leave. In this article, I explore the statutory obligations on employers when dealing with requests for special leave and potential ways to manage such requests through a dedicated policy.

Basic statutory rights

Employees have various rights to statutory leave, including the right to holiday, different types of family leave and time off to perform duties as a trade union or employee representative (see the table below). There is no right in law to take time off for jury service but dismissal for taking such time off would be unfair. Nor is there a right as such to take time off for sickness but, of course, it is a reality that employees will on occasion be unwell and unable to work. Similarly, in practice, employers tend to grant time off for medical appointments although this is not a legal requirement.

Statutory leave entitlements

Non-statutory or contractual leave

Unless an employee has a statutory right to take leave, or has been granted a contractual right to leave, an employee will generally require consent to take time off for other reasons. It is prudent for employers to consider other requests carefully and not to dismiss a request outright. Many employers are now developing ‘special leave’ policies to deal with requests for such absences.

Developing a special leave policy

Having a published special leave policy will assist both employers and employees. From employees’ perspective, it will ensure they are informed that there is no statutory or contractual right to take special leave, but it will highlight circumstances when they might still wish to take time off and how the employer will deal with such a request. From the employer’s perspective, it will clarify who deals with such requests and how. It may also help to minimise the risk of claims by ensuring requests are dealt with fairly, consistently and proportionately, without being rejected out of hand.

When drafting a special leave policy, employers should:

  • consider summarising the statutory forms of leave and whether there are any other leave policies which the employee should first consider (for example, point the employee to a maternity leave policy if she is seeking to take maternity leave);
  • be clear about who the policy applies to – whether just employees or also contractors and workers;
  • encourage employees to give as much notice as possible and warn them that, if they give inadequate notice, it may be more difficult for the employer to grant leave;
  • set out how to make the application -ideally, this would be on a designated form, setting out the requested dates for the leave and the reason for the request;
  • set out who will deal with any such request, for example the employee’s line manager or someone from human resources;
  • consider setting out a timetable for responding to the request, similar to a flexible working request;
  • confirm that the policy does not undermine the employee’s existing statutory or contractual rights;
  • stipulate that a period of special leave is unpaid, if this is the case – it is not advisable to state that pay may be made at the employer’s discretion, as this may still create an expectation of payment if the employee feels their request is particularly meritorious, while highlighting the scope for difference in treatment;
  • confirm that unauthorised absences may warrant disciplinary action up to and including dismissal under the disciplinary policy;
  • be clear that the policy is not contractual and can be amended by the company from time to time at its absolute discretion; and
  • the death of a relative (though note the impending April 2020 change relating to the death of a child);
  • the serious ill health of a relative (though note the right to time off to deal with emergencies relating to dependants);
  • a domestic emergency such as a house fire or boiler breakdown;
  • public duties (even if they are not covered by the ERA);
  • volunteering;
  • service in the reserve forces;
  • infertility treatment;
  • gender reassignment;
  • elective surgery, including plastic surgery;
  • the death of a family pet;
  • time off for hobbies; and
  • religious ceremonies.

Issues with specific requests

Some of these situations warrant further comment.

Infertility treatment

According to Fertility Network UK, one in six couples experience infertility. It is therefore a common issue faced by employees.

Employees undergoing infertility treatment may feel particularly stressed and overwhelmed. Such feelings can be exacerbated by concerns about the ability to take time off work. In some cases, employees will not want to talk to their manager about the fact they are undergoing infertility treatment and may instead apply to take annual leave. Others may feel happier about confiding in their employer and look to take additional (usually unpaid) time off as special leave. Both female and male employees may be affected by infertility treatment and the need to take time off work.

There is no statutory right to take time off for such treatment. The right to take time off for ante-natal appointments, for example, does not apply unless an employee is actually pregnant. Employers can therefore deal with applications for time off in the same way as requests for other medical appointments. It may be advisable to link to a sickness absence policy confirming that medical appointments should be taken outside office hours where practicable. An employee undergoing infertility treatment may require multiple appointments, but these can be treated in the same way as an employee undertaking multiple medical appointments. An employee who is off sick as a result of infertility treatment should be treated in the same way as an employee on other sickness absence.

A woman undergoing infertility treatment is only protected against pregnancy discrimination once she is pregnant. The European Court of Justice determined in Mayr v Bäckerei und Konditorei Gerhard Flöckner OHG [2008] that a woman undergoing infertility treatment is deemed to be pregnant when in vitro fertilised eggs are transferred into her uterus. Furthermore, if a female employee is on sick leave as a result of infertility treatment, in undergoing follicular puncture followed by immediate implantation of fertilised eggs, this leave arises because she is a woman. In such circumstances, if an employer dismisses her, this could be sex discrimination. The Employment Appeal Tribunal has endorsed this approach in Sahota v The Home Office [2009].

In practice, an employee is not obliged to inform the employer of the nature of her infertility treatment. The employer may therefore not know when she is deemed ‘pregnant’ and so should exercise caution to avoid pregnancy discrimination.

Gender reassignment

There are no official statistics but the Government Equalities Office has estimated that there are approximately 200,000 to 500,000 trans people living in the UK. The trans population is on the increase. It has been reported that at the Charing Cross Gender Identity Clinic in London, the oldest and largest adult clinic, the number of referrals for gender reassignment surgery almost quadrupled in ten years, from 498 in 2006-07 to 1,892 in 2015-16. It is therefore likely that more and more employers will be faced with trans employees seeking time off for treatment or counselling.

The starting point is that an employee undergoing gender reassignment is not entitled to statutory time off for medical treatment or counselling because of their gender reassignment. However, they should be treated in the same way as other employees on sick leave.

If an employer treats an employee less favourably in relation to absence for gender reassignment than it would have treated another employee on sickness absence, this may constitute direct discrimination contrary to s16(2) of the Equality Act 2010. The Equality Act 2010 Code of Practice states that:

It would be good practice for employers to discuss with transsexual staff how much time they will need to take off in relation to the gender reassignment process and accommodate those needs in accordance with their normal practice and procedures.

It may be prudent, therefore, to seek to agree a period of unpaid time off to undergo gender reassignment or counselling, if requested.

Elective surgery

TV shows and celebrities have fuelled a demand for elective cosmetic surgeries. An employee is not entitled by law to take time off for cosmetic surgery, but employers should be aware of potential underlying mental health issues if, for example, an employee is depressed because of their body image. Employers are therefore advised to treat such requests fairly and sensitively.

A matter of discretion

In conclusion, there are core statutory rights to take time off in certain cases. In other cases, employers have a wide degree of discretion on how best to manage requests for time off. Given the increasing range of requests which employers may face, it may be prudent to implement a special leave policy, to ensure such requests are treated openly, consistently and fairly.

Should you require advice on your special leave policy, please feel free to contact Michelle Last using the contact details below.

This article was first published in Employment Law Journal (June 2019) .

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This article is for general information purposes only and does not constitute legal or professional advice. It should not be used as a substitute for legal advice relating to your particular circumstances. Please note that the law may have changed since the date of this article.

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Transgender and employment law

Definition of gender reassignment.

Under  section 7(1)  of the EqA 2010, a person has the protected characteristic of gender reassignment if the person is:

"proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person's sex by changing physiological or other attributes of sex."

A reference to a person who has the protected characteristic of gender reassignment is a reference to a transsexual person ( section 7(2) , EqA 2010 ). Therefore, a woman making the transition to being a man and a man making the transition to being a woman both share the characteristic of gender reassignment.

The GEO Guide explains that trans people are those whose gender identity does not match the gender they were assigned at birth. A trans person may undergo the process of aligning their life and physical identity to match their gender identity, which is referred to as transitioning.

The EqA 2010 requires that a person should have at least proposed to undergo gender reassignment. It does not require such a proposal to be irrevocable. People who start the gender reassignment process but then decide to stop still have the protected characteristic of gender reassignment. ( Paragraph 2.25 EHRC Code .)

As the GEO Guide makes clear, a person can change gender without any medical intervention and medical processes are not essential to transitioning. It points out that some people choose not to, or cannot, undergo a medical process but are still trans.

The EHRC Code emphasises that the change to the definition makes gender reassignment a personal process (moving from a birth sex to a preferred gender) rather than a medical process ( paragraph 2.23 ). The Code gives the following example:

A person who was born physically female decides to spend the rest of his life as a man. He starts and continues to live as a man. He decides not to seek medical advice as he successfully passes as a man without the need for any medical intervention. He would be protected as someone who has the protected characteristic of gender reassignment. ( Paragraph 2.24 .)

Gender recognition

A trans person who is at least 18 years old can apply for legal recognition of their acquired gender through issue of a gender recognition certificate ( Gender Recognition Act 2004  (GRA 2004)). The application is made to the Gender Recognition Panel on the basis that the applicant has lived in their acquired gender throughout the preceding two years and intends to continue to live in their acquired gender until they die. Where applicants have been recognised under the law of another country or territory as having changed gender, the Panel need only be satisfied that the country or territory in question has been approved by the Secretary of State. Once a full gender recognition certificate has been issued to a person they become, for all purposes, a member of their acquired gender ( section 9(1), GRA 2004 ). However, the certificate does not have retrospective effect and will not cover things done or events that took place before it was issued ( section 9(2), GRA 2004 ).

Protection for transvestites?

According to the explanatory notes, the intention is to protect those "who make a commitment... to live permanently in their non-birth gender", but  not  "transvestites or others who choose temporarily to adopt the appearance of the opposite gender".

The EHRC Code clarifies:

"Protection is provided where, as part of the process of reassigning their sex, someone is driven by their gender identity to cross-dress, but not where someone chooses to cross-dress for some other reason" ( paragraph 2.26 ).

That said, transvestites will be protected from direct discrimination and harassment where the alleged discriminator wrongly perceives them to be undergoing gender reassignment.

Protection for intersex and non-binary individuals

Intersex individuals may have the biological characteristics of both sexes, an abnormality of sex chromosomes and/or a hormonal imbalance, and their medical appearance at birth may be neither clearly male nor female. A gender is assigned to the individual at birth, which may differ from the gender identity of the individual in the future. The Acas research paper  Supporting  trans  employees in the workplace  points out that being intersex is not specifically protected under the EqA 2010. However, the individual could potentially identify as trans to rely on protection under the EqA 2010. Intersex individuals may also have additional medical needs or other related medical conditions and may be able to seek additional protection under the disability discrimination provisions in the EqA 2010.

The term "non-binary" is used to describe someone who does not subscribe to the customary binary approach to gender, and who may regard themselves as neither male nor female, or both male and female, or take another approach to gender entirely (GEO Guide). The Acas research paper  Supporting  trans  employees in the workplace  suggests that the EqA 2010 excludes those who are non-binary unless they transition to a male or female or are perceived to be going through gender reassignment, in which case they may be able to qualify for protection.

However, in  Taylor v Jaguar Land Rover Ltd [2020] ET/1304471/2018  an employment tribunal held that a person who identified as gender fluid/non-binary was covered by section 7 of the EqA 2010 although it noted that the question raised a novel point of law. The tribunal upheld claims for harassment, direct discrimination and victimisation on the ground of gender reassignment brought against Jaguar Land Rover by an engineer who, having identified as gender fluid/non-binary, started dressing in women's clothing. See paragraphs 166-178 of the  tribunal's reasons  for discussion of the scope of the protected characteristic.

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  17. Should employers be creating or updating a special leave policy?

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    By Nicholas De Baun and Tara Ellis. Seyfarth Synopsis: On December 23, 2019, District Judge Rosemary Marquez ruled, in connection with a motion to dismiss, that Title VII does protect discrimination based on a person's transgender status, and that a health insurance plan's exclusion for gender reassignment surgery may not be "rationally related to a legitimate government interest."

  19. Transgender and employment law

    Definition of gender reassignment. Under section 7(1) of the EqA 2010, a person has the protected characteristic of gender reassignment if the person is: "proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person's sex by changing physiological or other attributes of sex."

  20. Human Rights Commission

    The Commission is to recommend to the Mayor and the Council policies and programs with the objective of implementing Commission goals and objectives concerning the civil and human rights of persons and groups in the community. The Commission shall work with City officials to ensure that the City continues to be a leader in extending equal ...

  21. Moscow-Pullman Daily News

    The candidates were asked whether they would remove, uphold or expand the 2013 anti-discrimination ordinance the Moscow City Council passed, which makes it illegal to make housing and employment decisions based on sexual orientation and gender identity. Moscow is one of a handful of cities in Idaho that have such an ordinance.

  22. LGBT rights in Russia

    In July 2023, Russia enacted the "Law Banning Gender Transition in Russia" , which includes the following provisions: doctors are prevented from offering gender-affirming healthcare and sexual reassignment surgery to any individual, regardless of age. changing gender markers on official documents is not allowed.

  23. Kirkland loses bid to subpoena other law firms in bias lawsuit

    U.S. law firm Kirkland & Ellis cannot subpoena two other major law firms to obtain employment records of a former associate who sued the Chicago-founded firm for sex discrimination, a federal ...

  24. Notable Women in Law 2024

    A former Brookfield Zoo associates board member, Ebersole co-chairs BakerWomen in Chicago, advancing gender equity, and captained the firm's 2022 election protection initiative in partnership with ...

  25. Putin signs expanded anti-LGBTQ laws in Russia, in latest ...

    Russian President Vladimir Putin on Monday signed into law a bill that expands a ban on so-called LGBTQ "propaganda" in Russia, making it illegal for anyone to promote same-sex relationships ...