Employers can take steps to make their organization safe and welcoming for people who identify as transgender or nonbinary, attendees learned at the recent Society for Human Resource Management’s INCLUSION 2020 virtual conference.
People are transgender when their gender identity does not match the sex or gender assigned at birth. People who are nonbinary experience gender identity other than man or woman; this is not the same as being transgender, said Jacob Rostovsky, a mental health clinician and transgender diversity and inclusion training consultant based in Los Angeles. He presented the session “Making Your Business Safe and Affirmative for Transgender and Nonbinary Employees.”
As shifting gender-identity norms receive more attention, Rostovsky—who has openly identified as transgender since age 13—offered the following employer do’s and don’ts:
- Do let employees decide if—or when—to tell others of their gender status. Do not “out” them.
- Do let employees undergoing gender transition set their timetable around workplace decisions. Do not ask personal questions about medical or surgical history, for example, or offer unsolicited advice on grooming and dress.
- Do speak out against subtle and overt forms of discrimination. Do not ask for an employee’s “real” name, which implies that a chosen name is not real. And do not evaluate transgender or nonbinary employees on how well they conform to the workplace’s idealized gender standards.
- Do pair a transitioning employee with a “point person”—not necessarily an HR professional—who will assist and listen.
[SHRM members-only toolkit: Managing Gender Transition in the Workplace]
The U.S. Supreme Court ruled on June 15 that gender identity is included in the definition of “sex,” and so employers may not discriminate against someone on the basis of gender identity, Rostovsky pointed out. He also pointed to legal protections covering transgender and nonbinary individuals, such as:
- Employers cannot demand medical or legal documentation of gender as a condition of restroom access. Also, local and federal agencies cannot require people who are transgender or nonbinary to use facilities that are unsanitary, potentially unsafe or located at an unreasonable distance from their workplace.
- Employers cannot forbid employees from disclosing their transgender status or gender identity or fire them for doing so. And an employer cannot arbitrarily disclose an employee’s transgender status without the worker’s consent.
- A transgender or nonbinary employee cannot be fired or refused a job even if an employer’s state or locality has not passed laws explicitly prohibiting gender-identity discrimination.
Rostovsky pointed HR professionals to resources they might find useful, such as the Transgender Law Center; Trans Lifeline, an organization that connects those who are transgender with resources; and TSER (Trans Student Educational Resources), an organization for transgender youth.
Other SHRM resources:
HHS Blocked from Rolling Back Health Care Protections for Transgender Workers, SHRM Online, August 2020
What Does the High Court’s LGBTQ Ruling Mean for Employee Benefits?, SHRM Online, June 2020
LGBTQ Inclusion in the Workplace: Updating Policies and Training, SHRM Online, June 2020
How should an employer handle a transgender employee’s request for a name change?, SHRM HR Q&A, June 2020