In 2007, hundreds of gay-rights organizations from across the country signed a statement opposing the first gay-rights bill ever approved by a house of Congress. Why? Because the bill, the Employment Non-Discrimination Act (ENDA), prohibited job discrimination based on sexual orientation, but not discrimination based on gender identity/expression. After the House voted to approve ENDA as written, a House committee held a first-ever hearing on the issue of gender-identity/expression discrimination. It is likely that future ENDA proposals will include both sexual orientation and gender identity/expression as protected characteristics. When that happens, Congress will once again be following the lead that employers from coast to coast have already clearly established in affirming the equal employment rights of their transgender employees.

For purposes of this article, “transgender” is an umbrella term describing people who present to the world a gender identity different from the one they were assigned to at birth. The typical transgender person, in their “mind’s eye,” firmly and sincerely sees their gender in a way that does not match their anatomy; this divergence can appear at a very early age and is not usually thought of as a choice any more than is one’s sexual orientation. Transgender people may or may not attempt to change their bodies (“transition”) to align with this gender expression (those who do are often referred to as “transsexuals”). While most transgender people use the pronouns associated with the gender they present, some avoid the use of traditional, gendered pronouns altogether.

A person who comes out as transgender and changes their gender expression often puts him- or herself at significant risk for rejection, discrimination, harassment, or even violence. There are countless transgender people who, having transitioned later in life, have difficulty finding a fulfilling job even though they have advanced degrees and years of relevant experience – somehow, exchanging pants for a skirt magically negates an MBA and professional accomplishment.

The American workplace is slowly but inexorably recognizing that transgender employees have much to offer, and deserve fair and equitable treatment. Increasingly, labor advocates are leading the way by persuading American employers to amend existing non-discrimination and anti-harassment policies to extend their protection to transgender workers. According to the Human Rights Campaign, 153 of the Fortune 500 companies have taken such a step. Clearly, there is progress yet to be made – and labor advocates are likely to be successful.

Beyond basic non-discrimination/anti-harassment policies, forward-thinking employers are also contemplating issues related to employment benefits. Most fundamentally, does an employer’s health plan, assuming there is one, cover services related to gender transition? These usually fall into three basic categories: counseling, hormones, and surgery. The vast majority of plans that cover mental-health treatment don’t draw a line around gender-identity counseling and attempt to exclude it, nor should they. This is important, because counseling is often the initial step that opens the next doors in the transition process. Some employer plans contain gender-related provisions that specifically exclude surgery, while other go further and also exclude hormones as well. More and more, however, health plans (and related plans, such as short-term disability policies) are eliminating these restrictions as employers realize that covering gender-related care significantly benefits affected employees while adding relatively little to their insurance premium. In June 2008, the American Medical Association issued a statement calling exclusions of gender-related care a form of discrimination. Workplace advocates will continue to press for change in this area, which, in turn, could positively affect the future conversation about universal health care and its scope.

Additional complexities may arise regarding a transgender employee’s partner, and their access to dependent health benefits. For example, if a married male employee transitions to female and adopts a female name, but does not divorce, does the spouse remain the employee’s wife, and therefore the employee’s dependent? Or does the spouse, in effect, become a domestic partner? (Hint: pick door number one.) This matters, because if the dependent is seen as a spouse, the benefits are a tax-free fringe benefit. On the other hand, if the dependent is characterized as a domestic partner, the benefits incur tax liability for the employee and deductions by the employer. On one level, this distinction would be immaterial if not for the tax difference, and here, labor and employers are speaking out together in favor of federal legislation that would treat spousal and partner benefits equally for tax purposes.

Taking back Labor Day means, among other things, sharing Labor Day with transgender workers, and committing oneself to learning about the issues they face, educating others, and advocating for workplace fairness for all.

About the Author: Phil Duran is the Staff Attorney at OutFront Minnesota, the state’s leading advocacy, direct service, and public policy agency for gay, lesbian, bisexual, and transgender (GLBT) Minnesotans and their allies. His work at OutFront Minnesota focuses on legal information, referral, and education; state legislative research and analysis; state administrative agency and local government public policy; school-related issues; and direct representation in selected public-assistance and human rights matters. Additionally, Duran serves on the board of the Minnesota Lavender Bar Association, which raises GLBT issues within the legal profession in Minnesota. He also is a past member of the executive council of the Minnesota State Bar Association (MSBA), and served on the steering committee of the MSBA’s Diversity in the Legal Profession Task Force. He currently serves on the MSBA Diversity Committee, MSBA Task Force on the Rights of Unmarried Couples, and Minnesota Supreme Court’s Gender Fairness Implementation Committee. Phil is a graduate of the University of Minnesota Law School.