Gender Identity Discrimination

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Gender identity discrimination in the workplace occurs when an employer discriminates against an employee because of their gender identity. Discrimination can include terminating a transgender employee after the employer finds out about the employee's gender identity or planned transition; denying a transgender employee access to workplace restroom facilities available to other employees; requiring a transgender employee to use a restroom not consistent with the employee's gender identity or presentation; harassing a transgender employee; permitting and/or refusing to investigate claims of harassment by coworkers and supervisors; or any other negative employment action taken because of an employee's gender identity.

Discrimination based on gender identity is not specifically prohibited under federal law at this time, but there are legislative efforts to pass federal laws to make it explicitly illegal. There is also some case law interpreting sex discrimination laws to encompass gender identity in certain circumstances. Protection from gender identity discrimination is enforced by state or local anti-discrimination agencies in 18 states. To learn more about gender identity discrimination, read below:

This page provides answers to the following questions:

1. What terms does an employer need to know?

2. What is gender identity discrimination?

3. What federal law covers gender identity discrimination?

4. What is the difference between gender identity discrimination and sexual orientation discrimination? Am I protected by sexual orientation discrimination laws?

5. What is the difference between gender identity discrimination and sex discrimination? Am I protected by sex discrimination laws?

6. Am I protected by disability discrimination laws, since gender identity disorder is a medical condition?

7. Are there any other laws or regulations which make it illegal to discriminate on the basis of gender identity specifically?

8. What if I'm being harassed because of my gender identity?

9. Are jokes or slurs about transgender employees against the law?

10. What if my employer does not know my gender identity?

11. I am about to start my transition. What do I need to tell my employer?

12. Can my employer discriminate against me as a transgender employee on religious grounds?

13. Can my employer prevent me from dressing in the clothing appropriate to my gender identity?

14. My employer will not allow me to use the restroom appropriate for persons of my gender identity, after one of my coworkers complained. Every time I need to use the restroom, I have to leave my office and go to a public building next door. What can I do?

15. Are my employer's health benefits required to pay for my medical treatment or sex reassignment surgery?

16. Who enforces the law?

17. How can I file a complaint?

18. What are the remedies available to me?

19. How much time do I have to file a charge of discrimination?

20. More Information About Gender Identity Discrimination

1. What terms does an employer need to know?

The phrase gender identity refers to one's self-identification as a man or a woman, as opposed to one's anatomical sex at birth. Usually, one's gender identity matches one's anatomical sex. However, for transgender people, gender identity does not align with their anatomical sex, or the gender they were assigned at birth. Someone born appearing male may have a strong self-image and self-identification as a woman; someone born appearing female may have a strong internal self-image and self-identification as a man. Some transgender people seek medical treatment in the form of hormone therapy or surgery to have their physical sex changed to agree with their gender identity.

The phrasegender expression refers to how society views one's gender identity based on cues like clothing, haircut, voice, and name: recognizing someone as a woman or a man. Transgender people generally want their gender expression to match their gender identity and not necessarily the gender they were assigned at birth.

The term transgender is a blanket term used to describe someone who, in one or more ways, does not conform to stereotypes of gender identity and/or gender expression. This term includes: female and male cross-dressers, transvestites, drag queens or kings, female and male impersonators, intersexed individuals, pre-operative, post-operative, and non-operative transsexuals, masculine females, feminine males, all persons whose perceived gender or anatomic sex may be incongruent with their gender expression, and all persons with gender characteristics and identities who are perceived to be androgynous.

A transitioning transgender person is one who is modifying his or her physical characteristics and gender expression to - in effect - satisfy the standards for membership in a gender other than the one they were assigned at birth. Some transgender people seek medical treatment in the form of hormone therapy or surgery to make their physical sex agree with their gender identity, while others do not. Transition is done with the help of medical professionals in accordance with recognized standards of care that have been in use since the 1960s. Transition may include a trial living period of at least one year to determine the individual's comfort with the new gender and, if the transitioning person so decides, continued hormone administration and life in the reassigned gender sometimes accompanied by surgical reconstruction of primary and secondary sex characteristics, facial structure, etc.

2. What is gender identity discrimination?

Gender identity discrimination means treating individuals differently in the workplace, or taking negative employment action against them because of their gender identity or gender expression.

Gender identity discrimination against transgender people in the workplace may include:

If any of these things have happened to you on the job, you may have suffered gender identity discrimination.

3. What federal law covers gender identity discrimination?

Currently there is no federal law that universally and explicitly provides protection for LGBT workers, and fewer than half of states have laws that protect workers based on sexual orientations and gender identity/expression. Discrimination based on gender identity is not specifically prohibited by the federal laws that generally apply to discrimination in employment. Discrimination laws specifically prohibit discrimination based on race, color, sex, religion, national origin, age, and disability.

The Employment Non-Discrimination Act currently being proposed in Congress is federal legislation which explicitly prohibits discrimination in the workplace based on sexual orientation or gender identity. The Act is modeled after current civil rights legislation like the Civil Rights Act of 1964 and the Americans with Disabilities Act. ENDA would protect transgender workers from being denied jobs and promotions, fired, demoted, or otherwise discriminated against solely on the basis of their gender identity.

As recently as December of 2014, the federal government has stated that in cases against state and local public employers the Department of Justice will interpret the Civil Rights Act of 1964 to protect people from discrimination based on gender identity.

However, some people have argued successfully that discrimination on the basis of gender identity is a form of discrimination based on sex, or disability, which are both illegal under federal law and the laws of most states. For more information, see questions 4, 5 and 6 below.

4. What is the difference between gender identity discrimination and sexual orientation discrimination? Am I protected by sexual orientation discrimination laws?

Sexual orientation as a legal concept is generally understood to refer only to whether a person is homosexual (gay), heterosexual (straight), or bisexual. Not all transgender people are gay. In fact, many transgender people identify as straight; many transgender women have male partners and many transgender men have female partners. When transgender people face discrimination, it often has no relationship to their sexual orientation.

Twenty-two states and the District of Columbia make it illegal to discriminate in employment on the basis of sexual orientation. Of these, Nineteen and the District of Columbia explicitly include transgender and transsexual people. In other states where courts have analyzed the state's sexual orientation anti-discrimination law, courts have narrowly interpreted the laws to exclude gender identity on the grounds that there is no evidence that gender identity was intended to be included in the law's definition of sexual orientation. Maffei v. Kolaeton Industry, Inc., 626 N.Y.S. 2d 391 (N.Y. Sup. Ct. 1995) (holding that the definition of sexual orientation in New York City ordinance does not include transsexualism); Underwood v. Archer Management Services, Inc., 857 F. Supp. 96, 98 (D.D.C. 1994) ("a conclusory statement that [transsexual plaintiff] was discharged on the basis of transsexuality . . . does not constitute a claim for relief on the basis of . . . sexual orientation") However, in all three of these locales, discrimination on the basis of gender identity is now illegal under a state law basis other than sexual orientation: Connecticut (sex); New York (sex); District of Columbia (personal appearance)". For more information about states that have anti-discrimination laws protecting transgender individuals see lgbtmaps.org.

If you are a transgender person who is considering bringing a discrimination claim in a state or city with a sexual orientation discrimination ordinance that does not specifically include gender identity, you should consult with a local attorney, as well as a person familiar with the history of the state law or city ordinance, to determine whether this strategy is likely to be successful.

5. What is the difference between gender identity discrimination and sex discrimination? Am I protected by sex discrimination laws?

Sex discrimination is treating an applicant or employee unfavorably because of that person's sex, or affiliation with an organization or group associated with a particular sex. The law forbids discrimination based on sex when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits and any other term or condition of employment. Gender identity discrimination is more specific to people who don't conform to stereotypes of gender identity and/or gender expression. For example: