While it is often challenging for any employee navigating work life to be a member of the LGBTQ community, transgender people tend to face the most severe problems, particularly in terms of discrimination. In 2016, the National Transgender Discrimination Survey found that 16 percent of transgender people had lost a job due to bias and that the unemployment rate among respondents was 15 percent, which was three times as high as the rate of unemployment in the U.S. population. In addition, in the year leading up to the survey, 30 percent of transgender respondents who had a job reported facing mistreatment at work due to their gender identity or expression This prejudice is present not only in employment but in society in general. Transgender people face pervasive mistreatment and violence. In the same aforementioned survey, it was found that almost half (47%) of transgender respondents were sexually assaulted at some point in their life. Fortunately, California has been working to strengthen the rights of transgender employees and transgender folks do have several legal protections. This article will go over some of those rights. If you think that your rights have been violated, speak with an employment or discrimination attorney to figure out what you can do about it.
For those unaware, transgender is a term used to describe people whose gender identity is different than their biological sex. It is separate from sexual orientation, which refers to who a person is attracted to. For instance, a transwoman can be bisexual, heterosexual, homosexual or have a different sexual orientation. California regulations define gender expression as an individual’s gender-related behavior or appearance, or the perception of such behavior or appearance, whether or not stereotypically associated with the person’s gender assigned at birth. These regulations define gender identity as an individual’s internal understanding of their gender and notes that gender identity does not need to match gender assigned at birth. Moreover, someone’s gender identity might be female, male, a combination of female and male, or neither female nor male. People who do not identify as only male or only female are typically considered non-binary and are afforded the same protections as transwomen and transmen. Furthermore, transgender people are protected during their transition at any stage, as well as if they do not decide to transition at all. Transition refers to both social and physical aspects of a person deciding to live as the gender they truly identify with. Social transition is the process of aligning one’s gender in social areas of life to the internal gender identity. It can include coming out as transgender to friends, family, and other people, as well as dressing or grooming in alignment with gender identity. Social transition also often includes changing name and personal pronouns, which are important changes to respect. Physical transition involves changing the body with medical treatments, such as hormone treatment, so that an individual physically aligns with their gender identity. With these definitions in mind, let’s review how California has tried to protect its transgender workers.
1. The right to appropriate facilities
Employers have to allow employees to use facilities like bathrooms that correspond to their gender identity or expression regardless of sex assigned at birth. Single occupancy facilities should be labeled with gender-neutral signs, like “Unisex” or “All Gender Restroom,” or even just “Gender Neutral.” While this right might seem trivial to some, it has been the cause of significant strife in the transgender community, and there has been a significant public debate on a national level regarding this so-called bathroom issue. Unfortunately, harassment is fairly common for transgender people who try to use the facilities aligned with their gender identity. Legal protections are an important step to addressing this problem.
2. The right to appropriate dress codes
Additionally, employers must be mindful when it comes to gendered dress codes. While these are not inherently illegal, employers cannot command an employee to conform to a grooming or dress code that is inconsistent with the employee’s gender identity or expression. Exceptions occur for the sake of business necessity, but they are not common. This right is particularly important during social transition, and a person changing from one gender’s dress code to another is protected.
3. The right to be free from discrimination
In California, it is illegal for employers to discriminate at any stage of employment based on gender identity or expression in the same way that it is illegal for them to discriminate based on sex, race, and national origin, among other categories. This means people cannot be fired, for instance, because they are transgender. Additionally, during hiring, employers cannot discriminate against people who are transgender; to help avoid potential bias, there are certain questions employers are legally not allowed to ask an applicant. These include questions meant to ascertain an applicant’s gender identity or sexual orientation, including queries about marital status, spouse’s name, etc. Questions about a person’s body or plans for surgery are also off-limits, unsurprisingly.
The fact that gender identity and expression are protected classes in California is the most important protection transgender workers have here, and the protection of these classes is something that many people are hoping the Supreme Court soon recognizes under Title VII’s prohibition of sex discrimination for the benefit of all the many states that currently allow discrimination against transgender people.
4. The right to an informed workplace
Employers have a couple of specific obligations that essentially afford transgender people greater protection by disseminating and increasing knowledge of transgender rights in the workplace.
First, employers are legally required to display a poster detailing transgender employees’ rights. This poster has to be visible to all employees, as well as easily accessible. To make this requirement easy for employers, the Department of Fair Employment and Housing (DFEH) made a poster employers can use. This is actually quite important because marginalized groups, including transgender folks, often do not realize what their rights are. This poster gives them power by providing that knowledge. Of course, it also provides that information to potentially ignorant coworkers, which may help preclude harassment.
Second, employers with at least 50 employees are required to provide at least 2 hours of training on sexual harassment to supervisory employees. This training must include information about harassment based on sexual orientation, gender identity, and gender expression. As a result, supervisors are in a better position to ensure a welcoming and safe work environment for all employees, regardless of gender identity or expression.
Transgender people deserve to be treated the same as cisgender people and, hopefully, that will be the norm one day soon. In the meantime, for those whose rights have been violated, for those suffering from discrimination and harassment at work because of their identity, reach out to an employment lawyer and learn how to fight back.