Transgender Rights in the Workplace

Nearly 70% of transgender California workers have experienced discrimination or harassment at work.

The California Department of Fair Employment and Housing (DFEH) has recently issued some definitions and guidelines with respect to transgender rights in the workplace applicable to both employers and employees.

The Fair Employment and Housing Act (FEHA) protects people who identify as transgender.

The DFEH states: “Our law uses the phrases ‘sex, gender, gender identity and gender expression.’ Gender expression is defined by the law to mean a ‘person’s gender-related appearance and behavior whether or not stereotypically associated with the person’s assigned sex at birth.”

Additionally, the DFEH defines two different kinds of gender transition.

Social Transition “involves a process of socially aligning one’s gender with the internal sense of self.” This includes things such as the changing of one’s name, bathroom usage, and participation in gender specific activities.

Physical Transition “refers to medical treatments an individual undergoes to physically align their body with internal sense of self.” These treatments include, but are not limited to things such as surgical procedures and hormone treatments.

Importantly, the DFEH states:

“A transgender person does not need to complete any particular step in a gender transition in order to be protected by the law. An employer may not condition its treatment or accommodation of a transitioning employee on completion of a particular step in the transition.”

The DFEH has issued new guidance for employers of transgender employees so that they may comply with FEHA.

Among the “FAQs for Employers” a few important guidelines have been introduced regarding employee rights. Here are a few of the guidelines to keep in mind.

Where employers provide for dress codes, they are to be applied in a solely non-discriminatory way. In other words, an employee who identifies as a male or a female should be permitted to dress and groom in accordance with the dress code associated with that identification.

Interviewers are not allowed to ask questions for the purpose of identifying a person’s sexual orientation or gender identity. Additionally, employers are not permitted to ask questions about marital status, or relations of household members to one another. The protection granted by the Health Insurance Portability and Accountability Act (HIPPA) also prevents employers from asking about a person’s body and any plans to have surgery on it.

Regardless of their assigned sex at birth, all employees have the right to use a restroom and locker room that correspond with their gender identity. Also, where it is possible, an employer should provide a unisex single stall restroom for an employee who wishes to have more privacy regardless of the employee’s reasoning. Use of such a unisex single stall restroom, however, should always be a matter of choice to the employee.