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When a gender-transitioning employee of Access Health Care Physicians began showing up for work dressed as a male on certain days and a female on others, management asked in-house counsel Bradley Brown for advice. The nurse practitioner had been hired as a male, and as she went through the transition to female, colleagues wondered how best to support her.
Access Health is a diverse and welcoming employer, but Brown wanted to make sure he wasn't overlooking any potential legal issues.?So he started a discussion thread on the LinkedIn page of In The House, a Web-based professional networking community for in-house counsel, asking for resources and advice. One of the group's members referred him to the National Center for Lesbian Rights (NCLR), a nonprofit law firm and leading advocacy organization for lesbian, gay, bisexual, and transgender (LGBT) people.
NCLR legal director Shannon Minter says that the organization primarily serves individuals, but employers are increasingly seeking advice about transgender workers. "I've been pleasantly surprised that we are starting to get a significant number of contacts from employers who are calling and saying, 'We have an employee who is transitioning, and we want to do the right thing. Can you help us determine what that is?' "
Minter himself transitioned from female to male in the mid-1990s. Even though he was working for an LGBT organization in San Francisco at the time, he was uncertain how his employer would react. In fact, he recalls, "I was terrified."
Now, when advising other employers how best to handle an employee's transition, Minter says the information he gives is rather simple: Respect and accept the new identity.
"That is the touchstone," he says. "If employers can understand that basic concept, almost everything else follows very naturally."
Minter acknowledges that coworkers who have known the transitioning worker as one gender can find it challenging to adapt to the change. "Employers worry that it will be something people will not be able to understand, but they do," he says. "The reality is, after what is usually an amazingly short period, other workers don't even think about it anymore."
But for that to happen, the workplace environment must be supportive. Management should be very clear that it expects coworkers to treat the transitioning individual like any other male or female employee, Minter advises.?He frowns on the tendency of some employers to require a transgender employee to use a separate restroom. "If leadership makes it clear that the employee is to be accepted as a man or woman in every way," says Minter, "people will get used to the fact that the employee is using the restroom that corresponds to their gender identity." Designating a separate restroom for one employee will send the message that the transgender employee is different from everyone else.
Access Health tried to take a proactive approach to its employee's transition. Management made a companywide announcement to help other employees know which name to use during the nurse practitioner's transition. The company will soon be featuring her in a newsletter that it will distribute to all employees and patients.
According to the Human Rights Campaign (HRC), only 16 states and the District of Columbia currently have laws prohibiting discrimination based on both sexual orientation and gender identity.
But more employers are contacting NCLR from states that don't have such laws. "Many employers generally want to do the right thing by their employees," says Minter. "Especially if they have someone who is a valued employee, and they've put resources into training them," he says. "Employers generally would like to retain those employees."
According to HRC, 57 percent of Fortune 500 companies had policies prohibiting discrimination based on gender identity as of last December. And the U.S. Equal Employment Opportunity Commission now accepts gender identity discrimination claims from employees in any state. Last year the EEOC ruled in Macy v. Department of Justice that gender identity discrimination is covered under Title VII.
"There was already a very strong judicial trend toward recognizing that Title VII protects transgender employees," notes Minter. "Now any transgender employee who is working for a private employer that's covered by Title VIIwhich is most of themcan file a complaint with the EEOC."