Effectively Facilitating Gender Transitionin the Workplace

Susannah Taylor & Lisa A. Burke & Kathleen Wheatley &

Joanie Sompayrac

Published online: 16 October 2010# Springer Science+Business Media, LLC 2010

Abstract Issues surrounding gender identity in the workplace are sensitive and complex.One of the more challenging scenarios for employers is facilitating the gender transitionprocess. Effectively communicating with co-workers and clients about the change,modifying personnel documents at the appropriate time, and dealing with more mundaneissues such as restroom usage and dress code represent the tip of the iceberg. This paper is acomprehensive review of the literature to help employers aptly manage the transitionprocess, so as to retain employees’ sense of fair treatment and acceptance at work.

Key words Gender transition . Transition guidelines . Gender identity . Diversity .

Transgender

A male employee steps into his manager’s office and states that in 3 months he will betransitioning to live and work as a female. The ramifications of the manager’s response atthis point not only can have potential legal implications, depending upon the jurisdiction ofthe employer, but can also affect this employee’s sense of dignity, fair treatment, andacceptance in the workplace (Cadrain 2009). If the employer chooses to assist the employeein the transition, beyond any legal requirements, a host of complex and sensitive issues willbe encountered by the manager, employee, co-workers, and clients about the impendingchange (Trotter 2010).

In this paper, we identify and examine the major issues surrounding a supportiveemployer response to deal with gender transition in the workplace. In terms of genderidentity, individuals see or view themselves at a given time as more or less “feminine” (i.e.,

Employ Respons Rights J (2011) 23:101–116DOI 10.1007/s10672-010-9164-9

S. Taylor : L. A. Burke (*) : K. Wheatley : J. SompayracCollege of Business, Dept. 6156, The University of Tennessee at Chattanooga, 615 McCallie Ave.,Chattanooga, TN 37403, USAe-mail: lisa-burke@utc.edu

K. Wheatleye-mail: kathleen-wheatley@utc.edu

J. Sompayrace-mail: joanie-sompayrac@utc.edu

womanly), “masculine” (i.e., manly) or “androgynous” (i.e., having both masculine andfeminine characteristics). While one’s gender identity is affected by one’s sex and gender, itis within one’s control to change this identity. A gender transition is the process ofmodifying the expression of an individual’s gender identity (Human Rights Campaign2008). To be clear, our focus in this paper is not on transvestism (i.e., practice of wearingclothes associated with the opposite sex), hermaphroditism (i.e., condition of having bothmale and female reproductive organs), or intersexuality (i.e., condition of displaying sexualcharacteristics of both male and female) (Merriam Webster, dictionary.com). Moreover, ourfocus is not on sexual orientation, which relates to sexual attraction, but again on changingone’s gender identity, or the gender with which an individual identifies. We employ theterm “transgender” throughout the rest of the paper, which refers to individuals who wish toexpress their gender identity in a presentation different from the sex assigned at birth (http://tgeu.net).

This paper makes a contribution to practice by reviewing and critiquing variousorganization policies and practices on gender transition and ultimately offering practicalguidelines. As such, the ideas and practical recommendations presented should be of use forline managers and human resource (HR) professionals, particularly in the U.S. Thesubstance of our article has particular relevance for the U.S., but we also outline itsimportance in the international context. Admittedly, while sex transitions in the workplaceare infrequent (Cadrain 2009), when they occur, the challenge can be overwhelming.Ideally, employers will proactively formulate their approach in accordance with theirorganizational culture (and any relevant laws) before an employee’s request for assistanceand support is made. Decisions and statements made reactively or on the fly can and havehad unfortunate outcomes for employees who experience a loss of acceptance, respect, anddignity (and potentially even their job) as well as for employers who may unknowinglyviolate relevant anti-discrimination laws.

While currently there is no federal protection under Title VII for transgenderemployees, some states and municipalities offer this group legal protection fromdiscrimination (Trotter 2010). As of 2008, 12 states and the District of Columbia hadextended discrimination protection to include gender identity or expression, and as of2009, 19 additional states had introduced legislation that could extend protection basedupon gender identity and/or expression (Transgender Law & Policy Institute 2008) (SeeAppendix A). States have generally offered this legal protection by either redefiningexisting words in their non-discrimination legislation or by adding a new protected classto their existing statutes. Regardless, once individuals are afforded legal protection,employers cannot react to situations (such as in the opening scenario) by limiting ordenying the individual’s employment opportunities. One recent high-profile example wasa transgender woman who won a jury verdict of $491,000 from the Library of Congressbecause her job offer was withdrawn by managers once they learned she was beginning totransition (Cadrain 2009).

Progressive employment practices in this area typically go beyond a complianceapproach and move toward an inclusive method that builds a supportive workplace climatefor transgender employees (Cadrain 2009; Githens and Aragon 2009; Trotter 2010). Forexample, various employers not only have anti-discrimination policies that include genderidentity even though they are not required to do so by federal, state, or local laws but alsohave a transition plan and support mechanisms in place. The goal, in doing so, is foremployees (i.e., the transitioning employee as well as co-workers and managers) to remainengaged in their work, perhaps even more so after the transition, instead of becomingstressed, alienated, or even exiting the firm.

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Background: Gender Transition in the Workplace

There is a continual increase in the number of private employers, especially large firms, aswell as collective bargaining agreements that include gender identity in their equalemployment opportunity (EEO) statements. Of Fortune 500 Companies, approximately41% protect gender identity (Human Rights Campaign 2010c). And according to the 2010Corporate Equality Index Report, which is issued by the Human Rights Campaign (HRC),427 out of 590 (72%) participating employers prohibit discrimination based on genderidentity. Of the businesses surveyed by the HRC, 448 (76%) have incorporated genderidentity into their diversity training or have implemented specific transition guidelines(HRC 2010b).

Estimates of the number of transgender individuals is challenging to obtain in partbecause being transgender (or any form of gender non-conformity) is not surveyed by theU.S. Census. However, the number of transsexuals—those who receive surgery to changetheir sex—has been estimated at 1% of the U.S. population (HRC 2008). Despite lowincidence rates, employers who have worked to create a transgender inclusive workplacehave voiced a variety of reasons why these changes are beneficial. Sullen Roth, VicePresident of Global Policy and Diversity of Avaya said, “people who are comfortable andwho feel included are more effective as employees—more creative and committed” (HRC2008, p.15). And Brad Salabvich of IBM noted that inclusive policies are viewedpositively: “if you’re the type of company with these policies, you also accept women andminorities” (HRC 2008, p.15). Such philosophies can in turn positively affect recruitingefforts to attract new employees.

Beyond covering gender identity in EEO statements, some employers have createdgender transition guidelines or plans. It is important to note that gender transition does notalways include sexual reassignment surgery. As mentioned prior, a gender transition is theprocess of modifying the expression of an individual’s gender identity (HRC 2008). Anemployer may have a transsexual employee, which involves physically altering one’s bodyto be consistent with the person’s desired gender identity (HRC 2008). In this case, thegender transition process is likely to be longer and have many obvious changes to theemployee’s original appearance. However, an employer may also have a transgenderemployee that does not include surgical changes (HRC 2008). More importantly, there arefew differences between a workplace transition for a transsexual or a transgender individualwho is not physically transforming because both situations will change operational aspectsof work life (e.g., the restroom used, workplace dress, and name used). The only majordifference might be more leave necessary for medical procedures in the case of atranssexual employee.

Gender transition guidelines provide a structure that can affect many parts of anorganization. Most obviously affected is the department or team in which the transitioningemployee works, but also HR is likely to be involved in the transition as a source ofinformation, sensitivity, and support. Many larger companies such as Nike, GeneralElectric, Wal-Mart, IBM and Ford Motor Company, have created employee network groupsfor lesbian, gay, bisexual, and transgender (LGBT) employees since navigating throughtheir transition in the workplace can be stressful (HRC 2010b). While there may be no othertransgender employees at their worksite, others going through similar situations may existat other worksite locations and can provide advice and guidance.

Having a pro-active approach to gender identity issues and determining how a companyplans to handle the transition of an employee has little direct expense. The only costassociated is the time that human resources and legal departments will spend altering EEO

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policies and creating transition guidelines. While the time involved could be considerable,especially for companies that are meticulous in developing policies to eliminate futureproblems, resources are available to companies to ease this process. For example, theSociety for Human Resource Management, the HRC, and various transgender advocacyorganizations, have created templates and guidelines for gender transition within theworkplace. While each company may choose to modify these guidelines, they provide astarting point that eliminates significant effort.

There are, of course, complicated issues that do not have simple solutions; even withinorganizations that have developed transition guidelines. For example, one of the mostcommon questions emanating from co-workers is: what about the restroom? Otheroperational topics of concern for employers include: dress codes, insurance plans, companyidentification, personnel records, and interactions with clients and co-workers. Whilefederal legislation might regulate some of these situations, current legislation (and the lackthere of) leaves room for interpretation. It is currently up to employers to determine howtheir policies will represent their corporate culture, any relevant legislation, and the ethicssurrounding the handling of transgender employees.

Creating Gender Transition Guidelines

If employers choose to incorporate gender identity in their Equal Opportunity policy,creating gender transition guidelines can be useful for both managers and employees. Often,transition plans and guidelines are an extension of the anti-harassment policy in theemployee handbook but narrowed in content to those areas affected by a gender transition.Providing guidelines to describe how the organization will handle a gender transitionreflects the tone for how the organization feels about the inclusion of transgenderemployees.

Often organizations that have transition plans initially include general informationregarding gender identity for educational purposes (Cadrain 2009). Employees may beunfamiliar with what being transgender truly means, and defining general terms andconcepts can be beneficial in the organization as confusion on this topic abounds. Onerecent study, for example, found that employees in the same workplace context can havesubstantially different levels of awareness around gender identity, and sexuality moregenerally (Kormanik 2009). The clarification of responsibilities will help to give a sense ofwhat each party’s role in the process is (HRC 2008). For the transitioning employee, it isimportant the guidelines remind him or her that without information and prior notificationof a transition, it is difficult for an employer to provide the best support possible. Andmanagers and supervisors must understand that they are responsible for ensuring their staffremains productive and professional. An employee who feels unfairly treated, ostracized orneglected will likely experience stress, distractions at work, and/or lower performance(Kormanik 2009).

In most transition plans, there is an explanation of who the stakeholders in the transitionprocess are, including the transitioning employee’s superior, the HR representatives bestsuited to work with the employee throughout the transition, and any co-workers that areessential to the transitioning employee’s work. Others might also include representativesfrom diversity networking and support groups the organization has previously establishedor is in the process of establishing (Githens and Aragon 2009). Some organizations thathave Employee Assistance Programs (EAP) are also relying upon those professionalresources to help transgender employees, as well as co-workers, navigate the transition and

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adjustment process at work (Taranowski 2008). The following topics are generally includedin transition guidelines (Trotter 2010) and discussed in detail next including: co-workerconcerns and education, restroom designation, dress codes, personal identification andrecords, and health insurance. In addition we touch on this issue from an internationalperspective.

Dealing with Co-worker Concerns

When an employee begins transitioning there are likely to be concerns and potentially someelement of resistance from fellow co-workers or supervisors. For those who have neverworked with or met a transgender person, they may have concerns and points of confusionabout what being transgender really means. Some may feel that their own personal beliefsdo not support transgender lifestyles; as mentioned earlier education is important. AlteringEEO policies and creating gender transition guidelines are the employer’s attempt tomaintain a healthy work environment for all employees so that the business can thrive; thismessage is important to reiterate to all employees and any communications to co-workersregarding the transition of an employee should stipulate respect for transitioning employees.

When and why the organization begins the process of including gender identity in theirEEO policy could make a large difference in co-worker’s comfort level with a transitionoccurring. The transition of an employee might receive a better reaction from co-workers ifthey have previously received information about what a transition entails. Educating peopleabout a minority group they are unaware of or misinformed about takes time, especially toachieve the desired result of respect. Including gender identity in the organization’sdiversity training before an employee comes forward with news of a transition could alsoprove to be beneficial for the employer, transitioning employee, and co-workers.Organizations that do not begin the process until an employee comes forward are notacting erroneously; encouraging diversity and understanding is better late than never.Whether an organization has gender identity training before or after an employee begins atransition, having specified training sessions and meetings for employees who will beworking closely with the transition employee during the process is often helpful (Walworth2003). These are opportune meetings to educate others about relevant concepts, to reviewtransition guidelines, and to discuss the timeline of how the transition will play out in theworkplace.

Co-workers may have questions about the transition that are not included in thetransition guidelines or addressed in educational venues. There are conflicting views onwhether or not addressing such questions to the transgender employee directly isappropriate. Some suggest doing so only in a polite way in regards to the preferredpronouns used to address or refer to them at work (i.e., he versus she) and general questionsabout how the transition process is going (Weiss 2007). Others suggest the broad methodof: “be as open and honest as you would like your co-worker to be with you” (Chevron2008, p.6). Perhaps the most appropriate method in these situations is for the co-worker tofirst address concerns with supervisors or HR representatives. First speaking with asupervisor that is working closely with the transgender employee might save someembarrassment for the transgender employee. This does not mean to imply that alltransgender employees do not wish to discuss their transition at all; however, until that isdetermined it is a very personal matter and sensitivity needs to be stressed.

A manager should plan to meet with all stakeholders in the transition and determine howthey fit into the planning of such a transition. Are there job related deadlines or events thatneed consideration? Is there any paperwork for short-term leave for surgery that needs to be

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completed? Questions such as these require discussion with all stakeholders. These plansshould stress confidentiality to these individuals because stakeholders will have moreinformation regarding the transition than other employees. With the disclosure of thispersonal information, discretion is necessary.

Once a transition for a transgender employee is imminent, important dates should beoutlined to the stakeholders while still maintaining flexibility for changes if necessary.Typically important dates include the date the employee will begin dressing as his or herdesired gender, when pronouns change (referring to the employee as he or she), and whenleave will be taken (Ernst & Young 2006). Determining when and how the employeewishes to inform co-workers is a very important element of the transition and the contentand format should be acceptable to both the transitioning employee and the employer.

Walworth (2003) suggests having the employee write a letter and accompany the letterwith a memo of support from senior staff. Ernst & Young (2006) suggests having aworkgroup meeting or sharing the news of the transition within a regularly scheduledmeeting; they also suggest letting the transgender employee decide whether he/she wishesto be present at the meeting. Weiss (2007) suggests having meetings with employees afterconfirming all elements of the transition with both management and the transitioningemployee; at this meeting, any information from the transition timeline that is pertinent tothose employees will be disseminated. Choosing a format that is similar to the format ofother major announcements in the firm could provide a comforting structure and tone to theannouncement. There are a myriad of possibilities on how to conduct the dissemination ofthis information and it can be designed to fit both the organizational culture and thetransgender employee’s comfort level.

Handling Sensitivity Surrounding Restroom Usage

While it may sound mundane, often co-workers are concerned about the logistical issue ofusing the restroom, once a transition is announced. From a compliance perspective, the onlyfederal legislation affecting a restroom policy of a company is the Occupational Safety andHealth Administration (OSHA) sanitation standards for employers. OSHA requires thatemployers “make toilet facilities available so that employees can use them when they needto do so,” and that employers “may not impose unreasonable restrictions on employee useof the facilities” (OSHA 2009, Sec. 1910.141). However, it is important to note that if abusiness operates within a state or locality that protects against gender identitydiscrimination, there may be additional standards for the use of the restroom by transgenderemployees. Due to the absence of a uniform federal policy regarding restroom standards fortransgender employees, practices vary widely. The HRC states that its recommendedrestroom standards are “straightforward” but the standards may contradict each other.Specifically, the HRC states that:

1. Employees may use the restroom that corresponds with their full-time genderpresentation. An employee should never be required to use the restroom of his or herdesignated sex at birth once he/she has begun transitioning and has changed their full-time gender presentation.

2. A transitioning employee may opt to use single-occupancy or unisex facilities, ifavailable and reasonably accessible, for some temporary period during the transitionprocess, but should not be required to do so permanently.

3. Coworkers uncomfortable with a transgender employee’s use of the same restroom mayuse separate restroom facilities (HRC 2008).

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Weiss (2007), principal consultant for a firm that advises organizations on transgenderworkplace diversity issues, argues against the HRC suggestions. Weiss (2007) argues thatoffering single-occupancy or unisex facilities as a temporary requirement contradicts thefirst situation, using the restroom associated with his or her gender presentation. Instead,Weiss (2007) suggests using five criteria she created. These criteria are used to determinethe best course of action for an employer on a case-by-case situation as opposed to a bright-line rule. The criteria are as follows: 1) number of restrooms within reasonable walkingdistance, 2) availability of single use, lockable restrooms, 3) length of the employee’stransition, 4) the employee’s comfort level, and 5) co-workers’ comfort level (p. 26–28).Depending on the company’s options regarding each criterion, the employer woulddetermine which method of restroom usage is most appropriate. If the employer considerseach criterion, the outcome is most likely to make more parties comfortable. If a companydoes not wish to spend time determining the solution from a set of criteria, a formal policyis still likely to serve the purposes needed but might require modification at a later date.

The last HRC criterion, co-workers’ comfort level, is an issue that causes varyingdegrees of concern. Weiss (2007) promotes examining the current environment and gauginghow to handle the restroom based on that environment. According to Weiss (2007), whilecare should be taken, co-worker comfort “should not be the sole consideration used indeciding on facilities usage, because there will always be varying levels of comfort anddiscomfort” (p. 28). Instead, Weiss (2007) encourages this criterion to be used as anindicator of whether HR should provide appropriate support for those uncomfortable withthe changes. The HRC proposed guidelines state that “coworkers uncomfortable with atransgender employee’s use of the same restroom may use separate restroom facilities”(HRC 2008, p. 33). While the HRC attempts to eliminate any negative treatment oftransgender employees, this rule is too broad and does not take into account individualsituations. Most of the HRC guidelines serve as constructive examples and information foremployers that are developing their own guidelines; however, for a manager it is not assimple as making a rule. Implementing a practice of telling employees (whether it be thetransgender employee or co-workers) they must use a separate restroom is not easily done.The goal of the guidelines is to make a work environment where all employees feelcomfortable. Instead of following a rule if there is an issue with an employee, a managershould initiate conversation and discuss what the employee wants out of the situation.There may not always be an easy answer, but simple policy statements will not eliminateproblems.

Chevron’s transition guidelines on this particular point serve as an example of howbusinesses are handling employee transitions. Chevron’s guidelines state that transitioningemployees may use “facilities that correspond to their Gender Identity. However, usage ofavailable single-occupancy or unisex facilities may be considered for a temporary periodduring the employee’s transition process or on an ongoing basis” (Chevron 2008, p. 5). Aproblem arises here as it does with the HRC’s guidelines; there is no explanation of forwhom or why these choices would be made. Do transitioning employees decide whetherthey choose to use the single occupancy or unisex facilities? Do they decide whether it isduring the transitioning process only or on an ongoing basis? Requesting that atransitioning employee utilize these alternative restrooms on an ongoing basis could bevery offensive to a transgender employee and may not be a practical option. Thisdiscrepancy is an example of why rules created need to be fully considered beforeimplementation. There are other issues with Chevron’s guidelines relating to co-workers’concerns regarding the restroom. Chevron’s policy, which is very similar to the HRC’sproposed guidelines, suggest that great care be taken for the “emotional responses and

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privacy concerns” of other employees (Chevron 2008, p. 5). This language does not addresshow those concerns of co-workers should be handled. Leaving these gaps in support couldresult in either party, transitioning employees or co-workers, feeling their needs are notbeing met by the workplace standards.

Ernst & Young, one of the nation’s largest accounting firms, has fewer options thanChevron in the company’s guidelines regarding restroom access. The guidelines use thegender presentation standard for which restroom a transitioning employee should use (Ernst& Young 2006). Ernst & Young utilizes an interesting indicator of when the presentationbegins, “specifically…following commencement of the “real life experience” and from thatpoint forward” (Ernst & Young 2006, p. 5). There is no mention of alternative optionsduring transitioning or any reason provided why a transitioning individual would need touse alternative facilities. The determining factor of when to begin using restrooms thatcorrespond with gender identity is based solely on when the “real life experience” begins.Ernst & Young uses the “real life experience” as the starting point for most actions andplanning involved in the transition of an employee. The real life experience is the time“prior to surgery, assuming the role of their reassigned gender” (Ernst & Young 2006, p.4),and the time, is determined by the transitioning employee alone. The use of a “real lifeexperience” allows for ample flexibility for both the employer and the employee during theprocess, which either party would likely find beneficial.

Reasonable access is often the cause for discrepancies among policies, and unfortunate-ly, there is no obvious solution. The HRC does, however, offer multiple options on how toreasonably offer access to restrooms such as: multiple-occupant, gender-segregatedrestroom facilities with lockable single-occupant stalls; single-occupancy, gender-neutralrestroom facilities; or multiple-occupant, gender neutral restroom facilities with lockablesingle-occupant stalls (HRC 2008, p. 33). Multiple-occupant, gender-segregated restroomsare the most commonly used facilities in U.S. workspaces. While it is relatively easy toconvert these into multiple-occupant, gender neutral facilities, there is an additional riskwith this change. By converting all restrooms into gender-neutral facilities, co-workers mayfeel additionally uncomfortable by now sharing restrooms with members of the oppositesex as well as the transitioning employee. In some environments this may be perfectlyacceptable to the staff and could perhaps be the simplest option. In others, problems orconcerns could arise.

An employer continuing to use multiple-occupant, gender-segregated restrooms, whileallowing transitioning employees to use the facility that corresponds with their genderidentity, might provide additional privacy enhancements. While these enhancements couldbe prompted by the transition of an employee, additional privacy may be appreciated by theentire staff. Co-workers who have concerns about the sexual intentions of transgenderemployees could find the privacy features reassuring. Moreover, an employee mightnaturally feel uncomfortable with gaps in restroom doors, regardless of a transgenderemployee’s presence. Examples of privacy features include: flaps on stall doors, extendedstall doors or extending privacy dividers between urinals (HRC 2008).

Articulating Dress Codes

By creating dress codes with transgender employees in mind, gender stereotypes in dressare likely avoided. As with all other areas of a transgender inclusive workplace, there aremany options for developing an inclusive dress code. Many companies choose not tomodify the existing dress code at all when creating transition guidelines for the company.Instead, employers create guidelines for the transitioning employee and his or her managers

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on how to handle the change in dress of the employee. Chevron and Ernst & Young bothallow transitioning employees to decide when they will begin to dress in their desiredgender. Chevron does request that employees give the supervisor prior warning about whenthey will be assuming the appearance of their gender identity (Chevron 2008; Ernst &Young 2006). Neither company addresses removing any gender stereotypically dressstandards unlike Weiss (2007) and the HRC, who propose strictly gender neutral standards.

BothWeiss (2007) and HRC recommend to employers that they adopt gender neutral dresscodes that avoid any gender stereotypes. Currently the legality of gender stereotypes in dresscodes is unclear. There have been businesses that have successfully defended alleged genderstereotypes in court due to a lack of evidence by the plaintiff to show a disproportionateburden (Jespersen v. Harrah’s 2006). Gender stereotypes used in dress codes could berequirements that women wear skirts and men wear coat and tie. Weiss (2007) suggestsapplying a dress code that asks all employees to “(1) dress neatly; (2) have clean fingernails;(3) not wear sandals; (4) not wear fragrances; and (5) not wear jewelry on their faces exceptfor earrings” (p. 39). However, employers may feel this type of dress code leaves much to bedesired. If an employer wishes to maintain a strict image standard with employees they havethe prerogative to do so and often neutral guidelines will not suffice.

Employers that allow transitioning employees to dress in their desired gender are likely to haveconcerns about the dress of the employee. In order to set guidelines that managers can use, Ernst& Young requires that transitioning employees “comply with the same standards of dress andappearance that apply to all other people in their workplace and similar position” (Ernst & Young2006, p. 4). Similarly, Chevron recommends that a transitioning employee mimic otheremployee’s dress in the workplace (Chevron 2008). The vague guidelines allow the employeewho is transitioning to have his or her own personal style and to fully express his or her genderidentity in the workplace, as other employees already do. Speaking with an HR representativeor a member of the LGBT resource group may help answer questions for involved parties.

Ernst & Young reminds its managers in the transition guidelines that a gender transitiondoes not mean managers lose the ability to review dress code adherence (Ernst & Young2006). This is an important right to highlight to managers as an employee begins thetransitioning process. Simply because an employee needs accommodation in some areas ofthe workplace does not mean a free pass for inappropriate workplace behavior. This is alsoa concept that should be reviewed with co-workers. The key intent behind any transgenderinclusive workplace is equality, not favorable treatment.

For managers who are concerned with how a transitioning employee might begin dressingonce the desired gender identity is assumed, communication is key. Having discussions withHR and LGBT employee resource groups are common options given to managers with little orno experience with these situations. Chevron has a unique option for a concerned manager. “If,as a manager, you are concerned about the appearance your transgender employee will presentwhen she or he starts coming to work in the other gender role, you might ask for a picture of heror him in professional attire” (Chevron 2008, p. 5). While this would be a helpful indicator forthe manager, the transitioning employee might feel singled-out by and uncomfortable withsuch a request. It is not common practice for employers to ask newly hired employees toprovide a photograph of how they will dress on their first day. The HR representative orresource group member may already be aware of how the employee will present him orherself or could begin communication with the manager on the subject. Weiss (2007)addresses this issue in her book with an extreme example.

…it is likely that the transgender employee will dress in a manner similar to others atthe organization…A male-to-female transgender employee is not likely to come to

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work in a wedding gown or a miniskirt, nor is a female-to-male transgender employeelikely to come to work in cowboy chaps or a muscle tee. If a transgender employeewere to wear inappropriate clothing to the job, he or she should be advised of theproblem, as with any employee (p. 40).

While this is an exaggerated example of a manager’s potential concerns, the pointremains: if the employee had no problems coming to work in a professional fashion beforethe transition, he/she is not likely to develop these problems.

Handling Changes in Employee Records

Legal recognition of a gender change is a confusing process for transitioning individualsand for employers. An employer has no obligation to modify personnel records until theemployee in his or her desired gender has all the legal documents (e.g., a modified birthcertificate or driver’s license) that represent his or her change. In many cases, governmententities will not recognize a sex change unless there has been a sex reassignment surgery(SRS). Aside from the possible financial or personal reasons a transgender individual maynot receive a SRS, it is a standard of medical care that in order to have the surgery anindividual must live in their desired gender for a year. If an employer refuses toacknowledge the transitioning employee’s desired gender or name without legaldocumentation, it would make living in their desired gender for a year very difficult ifnot impossible, thus preventing the surgery from occurring. If, however, an employer iswilling to accommodate and assist the transgender employee throughout this tumultuoustime period, the employer will likely incur some headaches of its own.

For example, changing any forms of employee documentation to the person’s desired genderbefore the legal changes have occurred could cause some discrepancies with outside agencies.The Social Security Administration (SSA), to which all companies must submit personalinformation for employees, will fail to verify an employee if the gender does not match (SocialSecurity Administration 2010). The HRC states that a No-Match Letter would be issued for amismatch in gender (HRC 2008, p. 30); however, the SSA states that a No-Match Letterwould be issued only “to inform [the employer] when a reported name or SSN does notmatch SSA’s records” (SSA 2010). The SSA will not recognize a change in gender untilmedical records are submitted that reflect a SRS (HRC 2008). When submitting employeeinformation to the SSA regarding gender the HRC recommends leaving the gender markerblank unless the employee has submitted documentation of a SRS to the SSA (HRC 2008).Removal of the gender mark should eliminate any issues with verification but should notresult in (according to the SSA) a No-Match Letter.

All states, since the passage of the Real IDAct in 2005, require judicial approval before legallychanging a name (Weiss 2007, p. 41). In order to receive a legal name change, somejurisdictions first require SRS to occur. For example, in New York’s Monroe County, StateSupreme Court Justice William P. Polito refused the name change of Sarah ElizabethRockefeller to Evan Kyle Rockefeller (New York Civil Liberties Union [NYCLU] 2010).Justice Polito denied the petition for legal name change stating that Rockefeller had notpresented “medical evidence” to substantiate the petition (NYCLU 2010). The need for medicalevidence for a legal name change puts a strain on transgender individuals who must live as theirdesired gender for 1 year before surgery. Ultimately, for employers and employees dealing withthe complexities of legal name changes, the gender transition process may be delayed beyondthe employee’s control. Perhaps the best approach is for employers to move forward with theemployee’s transitioning without the legal name change or actual sex change.

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If there are no complications due to the legality of a name change, in-houseidentification and records should be dealt with sooner rather than later. If possible,involved parties should begin the process of these changes before the employee beginsassuming the role of his or her desired gender. The simplest way to begin record andidentification changes is to start at the beginning. All of the “first day” paperwork should beupdated for the transitioning employee. Attention should be paid to confidentiality andtimeliness when dealing with document changes. For example, changing e-mail addressesand directories often involve information technology departments and other individualswho will be made aware of the situation. Working with the printer to create business cardswill require no additional confidentiality, but employers should be aware of potential timingin creating new business cards. The extra care for these matters is important because, ifdone correctly, it can minimize questions and concerns from clients and other externalstakeholders. Having business cards and e-mail addresses that match an employee’s genderpresentation can make third party interactions more comfortable for those involved,including both the transitioning employee and the third party members.

Higher profile employees may warrant more in-depth record changes, such as modifyingexisting documents in the firm, due to the likelihood of those existing documents beingrelevant in the future. Chevron’s transition guidelines, as an example, suggest doing asearch of the company’s intranet and modifying the pertinent search results (Chevron2008). Weiss (2007) suggests otherwise, stating that altering old documents for namechanges is “admirably accommodating, [but] it may not be possible to change” (p. 42).Instead, Weiss (2007) advises companies to work on present and future name discrepanciesonly. Most organizations with transition guidelines suggest developing a plan in advance,concerning how name discrepancies will be handled when they occur. Another element ofidentifying records that should not be overlooked is any workplace photographs of thetransitioning employee (Ernst & Young 2006).

For employees who are required to have state professional licenses in order to do their work,a legal name change is required. The employee must submit a legal name change to thelicensing organization before the employee can practice under that license (Ernst & Young2006). This element of the transition rests entirely on the employee being proactive in his orher transition process. There are varying regulations regarding professional licensingdepending on the jurisdiction, so the amount of employee time and effort will vary.Employers willing to accommodate a transitioning employee should be prepared to work withthe employee if there are any issues in receiving changes to a professional license.

Identifying Health Insurance Issues for Transgender Employees

Employers determined to create a transgender-inclusive workplace are implementing healthinsurance that covers transgender employees’ specific medical needs. Kimpton Hotels &Restaurants recently won the HRC’s Award for Workplace Equality Innovation 2010 (HRC2010a). Niki Leondakis, the Chief Operating Officer of Kimpton, says that they offer suchinclusive benefits for its employees because “it is the right thing to do” (HRC 2010a).Kimpton prides itself on being an employer where all employees deserve equal respect, andensuring equal benefits facilitates that sentiment (HRC 2010a). For all employers, benefitscan prove a useful bargaining chip in recruiting and retention. In MetLife’s Seventh AnnualEmployee Benefits Trend Study, 41% of employees reported benefits to be the “foundationof their financial safety net” (Miller 2009). Whether it is a moral obligation to employees ora recruiting method, there is a growing trend in offering transgender-inclusive benefits(HRC 2002, 2010b).

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According to the 2010 Corporate Equality Index issued by the HRC annually, 76% ofemployers that participate in the index have insurance that covers one of the five types oftreatment considered transgender related treatment (HRC 2010b). Of the five types, there was awide range of participation in each treatment category: short term leave (59%), mental healthcare (55%), pharmaceuticals (24%), hormone treatment related care (20%) and surgicalprocedures, the most costly (12%) (HRC 2010b). The wide range of participation correlateswith the additional cost associated with the care. The costs per individual for includingtransgender health benefits has been analyzed by Dr. Mary Ann Horton, in a study based on a2001 survey of surgeons who offer SRS procedures. Ultimately, the study found that includingtransgender health benefits (inclusive of SRS as well as hormone therapy and pharmaceuticals)in existing health insurance would increase the cost for the employer at the most by $0.066 peremployee per year (Horton 2008). Horton (2008) makes note that this study is based on datafrom 2001 and inflation may increase these costs. However, the prices of these proceduresshould decrease as more surgeons enter the field, creating a competitive cost environment.

Employers may be hesitant to include transgender benefits for two major reasons: 1) insurancepolicy restrictions and 2) intimidating costs associated with specific procedures. The first situationcauses hesitancy because, typically, employers purchase group health insurance products where theemployer has very little control over the provisions of health insurance. While employers cannegotiate for the inclusion of transgender benefits within their insurance provider’s plan, it isdifficult to ensure that transgender benefits are available. Employees who have already transitionedand have had his or her sex legally changed should be able to receive health benefits easily andHorton (2008) estimates that after transition costs do not increase pre-existing health plan costs.

The prices for SRS procedures are set by the surgeons that perform the surgeries and vary inprice based on the extensiveness of the transformation, whether it is a male-to-female or female-to-male procedure. Male-to-female surgeries range from $4,500 to $26,000 and female-to-malesurgeries range from $4,000 to $60,000 (Horton 2008). The price of surgery can dramaticallychange based on how many procedures are involved in each surgery, as seen by the $56,000difference in price for a female-to-male procedure. These extremely high procedure costs couldbe intimidating for an employer when considering transgender benefits. However, Horton’s(2008) study demonstrates that the increase in costs per year per employee is not as drastic asthe price tags on the surgeries might imply. The high cost of a single surgery is diluted by thenumber of individuals in the plan, the employee share, and the low frequency of surgeries.

Employers have also voiced concerns that offering benefits such as these would create the“magnet effect” (Horton 2008, p. 3). The magnet effect is the concept that offering atransgender benefit, a benefit that is not widely offered, would create an influx of transgenderpeople seeking employment from that organization. In regards to the possibility of a situationsuch as this, it is useful to examine the experiences of organizations that already offeredtransgender benefits. While Horton’s (2008) research is useful to examine the increase incosts and usage, the actual experiences of the City of San Francisco and Lucent Technologiesprovide a blueprint for companies wishing to expand their benefit programs.

In 2001, the City of San Francisco began offering a health plan that covered transitiontreatments that included surgeries, hormone treatment, mental health care, and pharmaceuticalbenefits for all 80,000 members (Harmon 2007). The pilot program charged $1.70 a month toall members of the group plan to meet the demand of the new benefit (Harmon 2007). Therequirements set a $50,000 surgical cap and a 1-year enrollment requirement to be eligible forinsurance coverage of the procedures (Harmon 2007). The second year of the program, thesurgical cap was increased and the 1-year enrollment requirement removed (Harmon 2007).As of August of 2005, the city of San Francisco “had collected $5.6 million and had paid out$183,000 on 11 claims” as well as reducing costs charged to members to $1.16 (Harmon

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2007, p. 1). Obviously, the plan overestimated the cost associated with the surgeries and hassince modified the amount collected from members. As of July 2006, two out of the threeinsurance providers that San Francisco now uses treat transitioning surgeries the same as anyother typical surgery such as heart surgery (Harmon 2007).

Lucent Technologies began providing transgender health coverage in its benefit plan in 2000(Horton 2008). Horton used the information of Lucent Technologies for the years from 2001to 2003, while Lucent was downsizing from 150,000 employees to 33,000 (Horton 2008).Lucent provided an 80% cost-sharing percentage with its employees for health costs. Duringthese 3 years, Lucent had three employees undergo transitioning surgeries. Lucent paid fortwo of these employees’ surgeries totaling just over $19,290; the third employee chose to payfor the surgeries independently (Horton 2008). Lucent is another example of the lack of the“magnet effect” as Lucent was one of the first private companies to offer transgender benefitsand this news was highly publicized within the LGBT community (Horton 2008).

Both Lucent’s and San Francisco’s experiences with transgender inclusive health plansserve as excellent guides for employers. San Francisco was able to decrease the caps andrestrictions first set in place and other employers would likely have the same outcome.However, having a pilot program with restrictions and caps might be an easier adjustmentfor the health care provider and employer. As employers across the country continue toprovide benefits for transgender employees, it is likely insurance plans will follow the trendand accessibility of plans will increase.

Healthcare is an expensive cost and is subsequently the least commonly implementedelement of a transgender-inclusive workplace (HRC 2010b). If an employer determines thatoffering transgender benefits is not a possibility, there are some options remaining to assistan employee. Most importantly, an employer can ensure that the current insurance plan hascomprehensive mental health care coverage. Without any counseling, transgenderindividuals are likely to experience “stress, depression, suicide attempts [and] poor workperformance” (HRC 2008, p. 36). Ensuring that a transgender employee will at least receivemental health care, for example via the employer’s Employee Assistance Program, can keepemployees attentive at work and even possibly save a life.

International Context

We have focused in this article on workplace transition issues and policies in the U.S. Froma comparative perspective, it would be interesting to uncover specific organizationalpractices regarding gender transition in other parts of the world (e.g., Europe, Australia).We certainly encourage more academic reviews and research in that regard.

It is apparent, however, that some element of legal protection in the employment sphereis afforded across member states of the European Union. Specifically, the European Courtof Justice (ECJ) has generated a body of case law based on general principles of law that iscommon to its member states. The ECJ wields significant influence because all laws passedat the European level are treated as legally superior to national laws; thus if the two levelsshould diverge the European law must be made to prevail (European Network AgainstRacism, ENAR, Fact Sheet 38, 2009). As far back as 1976, the ECJ held that an article inthe Treaty of Rome, which originally worked to secure freedom of movement for workersacross Europe, could be used by individual employees against companies (ENAR FactSheet 38, 2009). Other directives in 1976 prohibiting sex discrimination were passedincluding the critical Equal Treatment Directive, and more importantly, subsequent ECJrulings have made certain that “sex discrimination” is widely defined and interpreted(ENAR Fact Sheet 38, 2009). In other words, the ECJ has ruled that the prohibition on sex

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discrimination in the Equal Treatment Directive includes “discrimination against transsex-ual people on the grounds of gender reassignment” as well as pregnancy discrimination(ENAR Fact Sheet 38, 2009, p. 4). More recently, the Employment Equality Directive of2000 was created specifically to ensure equal treatment for individuals in employmentsituations on various grounds including sexual orientation, age, disability, and religion.

For more information about transgender issues in specific countries (such as France, Italy,Sweden, Germany, Ireland, Russia, Spain and many others), the reader can visit http://tgeu.net/.This website, maintained by a group called Transgender Europe, includes the situationtransgender people face in the specific country, as well as results of surveys about social andpolitical issues transgender people confront and relevant case law and judgments (http://tgeu.net).

Conclusion

Simply developing a policy and creating gender transition guidelines will not instantly create anenvironment in organizations where all employees are treated as equals. To have that type ofenvironment in the workplace will require care and engagement on the part of the employer, HR,and line managers. Dealing with the emotional needs of employees is rarely a task managerswelcome and is often ignored. When managing a situation as serious as a gender transition,managers must be very aware of how members of the workplace are reacting. Ensuring that allemployees are adjusting to the necessary changes can prevent losing valuable employees. But theissues involved reach beyond those of the somewhat operational nature addressed in this paper toinclude longer-term issues such as career development (see Gedro 2009).

For managers who are inexperienced with the demands of managing a transition of atransgender employee, creating the framework of a transition plan can be helpful. This isnot always included in transition guidelines, but can be. Ernst & Young provided a “JobRelated Planning for a Gender Transition” appendix in its transition guidelines (Ernst &Young 2006). To be effective, these plans should identify people who are best-suited for anemployee to begin the discussion of transition. Whether that person is an HR representativeor manager, an appropriate individual for this discussion should be provided. If HR feelsthe front line managers may not be adept in a situation like this, identifying an HRrepresentative or a member of a diversity team may be more appropriate.

As aforementioned, diversity training can be an integral piece of managing an inclusiveworkforce. Training on gender identity can range from small meetings, inclusion in largerdiversity training courses or consultation from external trainers (HRC 2008). The HRCrecommends having training on gender identity taught by someone with specific experiencewith transgender issues, not a general diversity instructor (HRC 2008). Walworth (2003)states that training is especially important for gender identity because of the manymisconceptions that exist about transgender individuals.

Misconceptions about transsexualism can be drawn from media portrayals oftranssexuals as neurotic, dysfunctional, flamboyant, sex-crazed, perverted ordepressed. They may appear as prostitutes, people in unstable relationships, drugabusers or serial killers. (p. 10)

The abundance of misinformation makes training by an informed and experiencedprofessional extremely important; a refresher or more detailed training sessions should beconsidered for groups of employees that will be directly affected by the employee’stransition.

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In summary, when managing a transgender employee and the changing workenvironment consequent to an employee’s transition, there is no room for a hands-offmanagement approach. To ensure the safety and comfort of all employees, leadership,procedures and the adherence to those procedures must be a priority. Maintaining anenvironment in which all employees feel comfortable disclosing personal concerns will becrucial for employers, employees, HR professionals, and line managers.

Appendix A

States with Gender Identity Anti-Discrimination Legislation as of 2008

CaliforniaColoradoDistrict of ColumbiaIllinoisIowaMaineMinnesotaNew JerseyNew MexicoOregonRhode IslandVermontWashington

States with Gender Identity Anti-Discrimination Legislation Introduced in 2009

ArizonaConnecticutFloridaGeorgiaIndianaKansasKentuckyMarylandMassachusettsMichiganMissouriMontanaNew YorkNorth CarolinaNorth DakotaPennsylvaniaSouth CarolinaTexasVirginiaSource: Transgender Law and Policy Institute (2008)

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