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9 Tips for Accommodating Transgender Employees in the United States

This article focuses on the laws in the United States. Tune in next article for a review of transnational transgender issues. 

This evolving area of law adds a new layer of complexity to the existing web of anti-discrimination laws, and it is incumbent upon in-house lawyers to understand how best to navigate this terrain. Let's start with some general definitions.

  • Gender Identity: an individual's internal sense of being female, male, or something else
  • Gender Expression: the way a person expresses gender identity
  • Transgender: the umbrella term for people whose gender identity, expression, or behavior differs from those typically associated with their sex at birth. For example, a transgender man is someone born as a female but identifies and lives as a male, and vice versa. The term includes:
    • Androgynous people – who have both male and female qualities.
    • Cross-dressers – the practice of wearing clothes made for the opposite sex.
    • Gender non-conformists – people whose behavior does not conform to traditional expectations based on their biological gender.
    • Transsexuals – people who wish to, or do, alter their bodies to differ from their birth gender through hormones and/or surgery.

Why transgender individuals need protection

A spate of legal claims and litigation point to hostile environments and adverse employment decisions based on gender identity. According to a 2009 National Transgender Discrimination Survey, transgender individuals reported the following as a result of their transgender status:

  • 97 percent reported mistreatment at work
  • 47 percent reported an adverse job action
  • 26 percent reported job loss
  • 15 percent poverty rate
  • 13 percent overall unemployment rate

Current US federal law

No federal statute exists expressly prohibiting discrimination against transgender employees. President Obama amended Executive Orders 11246 and 11478 to prohibit federal contractors and subcontractors from discriminating based on sexual orientation and gender identity. This was an extension of already existing prohibitions against discrimination.

State laws

A growing number of states explicitly protect employees or students based on sexual orientation, gender identity or both, either by statute or case law. These states include Arkansas, Colorado, Connecticut, Delaware, the District of Columbia, Hawaii, Illinois, Iowa, Maine, Maryland, Minnesota, Nevada, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, and Washington. Effective April 1, 2016, California amended its Fair Employment and Housing Act (FEHA) placing an affirmative duty upon covered employers[1] to take reasonable steps to prevent and correct discriminatory and harassing workplace conduct and update policy and training. Its prohibition against discrimination on the basis of sex includes gender identity, gender expression, and sex stereotyping.[2]

But state law is far from settled. Amidst backlash particularly from the business and entertainment industries, several states have taken various measures aimed at protecting religious freedom or adhering to an individual's original gender.

  • Mississippi passed a religious freedom law that entitles business owners to deny services to aid extramarital sex and to the LGBT community based on sincerely held religious beliefs.
  • While North Carolina's governor has amended it through executive order, the state's law prohibits transgender people from using bathrooms different from their stated gender at birth.
  • In Tennessee the governor is considering a bill allowing mental health counselors to deny patients service based on personal principle.
  • In South Carolina a lawmaker introduced a bathroom bill requiring members of the transgender community to use public restrooms corresponding to their sex at birth.


Reversing its historical position in a 2013 decision,[3] the Equal Employment Opportunity Commission (EEOC) now holds that transgender-based discrimination is akin to discrimination based on sex and therefore covered under Title VII of the Civil Rights Act of 1964. The EEOC also recognizes sexual orientation as covered under Title VII. While federal courts are not bound by EEOC decisions, the latter provide a barometer by which you can anticipate the potential outcome of an administrative claim. 

It is noteworthy that in cases when courts do extend equal protection to individuals based on transgender status and gender identity, the employee must still overcome the traditional burden of proving that an employer's adverse action was discriminatory and that any non-discriminatory reason offered by that employer was pretextual.[4]

The guiding principle of the Occupational Safety and Health Administration (OSHA) is that "all employees, including transgender employees, should have access to restrooms that correspond to their gender identity," and it provides relevant guidance to employers.

Practice tips

As a general starting point, view and treat sexual orientation, gender identity, or expression as Title VII protected classes. Update your policies accordingly and take an expansive approach; for example, the Americans with Disabilities Act (ADA) specifically exempts transgender individuals but related issues may be covered under the Family Medical Leave Act (FMLA), especially if the employee undergoes hormonal treatment or surgery. Thus, if the individual in question is a covered employee with a serious medical condition under FMLA, they should be treated the same as any other eligible employee. Consider these additional approaches:

  1. Apply FMLA, ADA, Short Term Disability (STD) policies, and standards consistently.
  2. Keep individual information confidential and communicate only with people (e.g. select Human Resources professionals) on a need-to-know basis.
  3. Consider whether you need unisex or lockable restrooms. Bear in mind that restricting transgender employees to specific restrooms may single them out and create concerns for their physical safety.
  4. Review your medical coverage and leave policies to eliminate discriminatory exclusions.
  5. Keep your dress code gender-neutral and apply it consistently.
  6. Encourage communication and complaints to address problems early.
  7. Respond to all requests for accommodation as you would any other requests for accommodation.
  8. Communicate and train your employees on any workplace changes that may impact them, balancing this against confidentiality interests of individual employees.
  9. If applicable to your workplace, establish gender transition guidelines that delineate clear protocols and expectations of employees, their managers, coworkers, and staff.

Additional reading

Amended California FEHA Regulations Take Effect on April 1 and Impose New Requirements on Employers, Lexology

OSHA Best Practices Guide to Restroom Access for Transgender Workers

Changing Interpretations of LGBT Discrimination, Gloria Myers and Johnathan W. Yarbrough, ACC Docket

Corporate Activists Focus on Defeating LGBT Discrimination Laws Nic Carter,

Transgender Law and Policy Institute

[1] Those regularly employing five or more individuals.

[2] Defined as an assumption about a person's appearance/ behavior/ ability/ inability to perform certain types of work based on gender-based expectations/ myths/ stereotypes.

[3] Macy v. Holder, Complaint No. ATF-2011-00751 (2013)/

[4] See e.g. Janis Stacy v. LSI Corp., 544 Fed. Appx. 93 (3rd Cir. 2013).

About the Author

Spiwe L.A. Pierce is deputy general counsel at John Crane. She is a member of the ACC intellectual property, information governance and law department management sections.

The information in any resource collected in this virtual library should not be construed as legal advice or legal opinion on specific facts and should not be considered representative of the views of its authors, its sponsors, and/or ACC. These resources are not intended as a definitive statement on the subject addressed. Rather, they are intended to serve as a tool providing practical advice and references for the busy in-house practitioner and other readers.