Gender Identity Discrimination
Gender identity discrimination sometimes occurs in the workplace. Gender identity is the gender an individual personally identifies with, such as male, female, or nonbinary. Gender identity is not necessarily the gender or sex a person was assigned at birth – and not all people who identify with a gender other than their sex at birth consider themselves to be transgender. Gender identity is also a separate topic from sexual orientation.
Examples of gender identity discrimination in the workplace include:
- Firing or refusing to hire an employee due to their gender identity or gender transition
- Denying access to facilities available to other employees because an employee is transgender
There were no federal protections for gender discrimination until recently. In 2020, the Supreme Court held in Bostock v. Clayton County, GA that Title VII of the Civil Rights Act protects employees from discrimination based on their gender identity or transgender status. State laws may provide additional protections.
To learn more about gender identity discrimination, refer to the Q&A below.
Employers should make an effort to understand certain terminology so that they can maintain a comfortable work environment. When in doubt, employers should simply ask their employees in a respectful manner to educate them. Employers should respect the pronouns their employees choose to go by.
Some terms an employer might encounter include:
Gender identity. This refers to the gender an individual chooses to identify with, regardless of their biological sex or sexual orientation. This may be male, female, nonbinary, or some other identification.
Gender expression. Gender expression is how society expects persons in certain genders to perform. Not everyone conforms to this. For example, women typically have long hair, while men often have short hair.
Nonbinary. Nonbinary is one possible gender identity. Rather than identifying as a male or female, a person may be gender fluid or choose not to identify with any gender.
Transgender. Transgender is a term that may refer to a person who identifies with a gender other than the gender they were assigned at birth. Gender and biological sex do not always correlate. Employers should be cautious not to label any employee.
Transitioning. This refers to the period when a person is in the process of switching their gender identity. It often involves changes to a person’s gender expression.
Gender identity discrimination means treating individuals differently in the workplace, or taking negative employment action against them because of their gender identity or gender expression.
Gender identity discrimination against transgender people in the workplace may include:
- Being fired when your employer finds out about your plan to undergo sex reassignment surgery.
- Being fired for cross-dressing outside the workplace if your employer finds out.
- If you as a transgender person attempt to wear clothing appropriate to your gender identity you may be disciplined, reassigned or terminated, based on a failure to conform to a company dress code policy that makes no effort to accommodate transgender individuals.
- Being refused access to workplace restroom facilities and harassed by coworkers and supervisors on the basis of your gender identity.
- Being denied equal treatment in public accommodations, which can affect your ability to successfully function in the workplace. For example, transgender people have been asked to leave restaurants, hotels, stores, medical facilities, and educational institutions. This discrimination may make it difficult, if not impossible, to successfully perform one’s job.
If any of these things have happened to you on the job, you may have suffered gender identity discrimination.
The Americans with Disability Act (ADA) prohibits employers from discriminating based on disability. The ADA explicitly states that it does not apply to “transvestism,” “transsexualism,” or “gender identity disorders not resulting from physical impairments.” (42 U.S.C. § 12211).
However, a federal appellate court for the Fourth Circuit held in Williams v. Kincaid in 2022, that gender dysphoria is a protected condition under the ADA and Rehabilitation Act. This means that employees in states within that district are protected from disability discrimination if they have gender dysphoria. States in the Fourth Circuit are Maryland, North Carolina, South Carolina, Virginia, and West Virginia. Other states may cite this ruling in the future.
Law in this area is still developing.
Harassment for gender identity is treated the same as harassment for any other discriminatory reason. Under Title VII, it is illegal for employers to discriminate based on sexual orientation or gender identity. Conduct may be considered harassment if it is offensive, unwelcome, and targeted at a protected characteristic – including gender orientation. Conduct is more likely to qualify as harassment if it is explicit and repeated. Harassment in the workplace can be from employers, co-workers, and others.
Visit workplacefairness.org for more information on sexual harassment.
It depends. Jokes or slurs about your gender identity may be considered a form of sexual harassment, which courts have determined is a form of illegal discrimination. However, federal law does not prohibit simple teasing, offhand comments, or isolated incidents that are not extremely serious. Generally the conduct must be sufficiently frequent or severe to create a hostile work environment or result in a “tangible employment action,” such as hiring, firing, promotion, or demotion. The EEOC notes that harassment can include offensive remarks about a person’s sex. For more information about hostile work environments, see our page on sexual harassment.
Those who have gone through the process of transitioning in the workplace strongly recommend that you share your intention to transition with your employer in advance, in a face-to-face, one-on-one meeting. It’s not a good idea to surprise your boss by transitioning without an advance notice. Your boss should be part of the planning process: you will need your boss as an ally if you are to have a successful transition. Your management and others involved in the planning should become familiar with educational resources, including company policy and books on the subject.
It is recommended on the day of your transition that your employer hold a department meeting or discuss the transition in a meeting that has already been scheduled. Everyone in your work group with whom you interact often should be there. The manager of the work group (the department head, for example) should make the announcement, as it is important for the highest level manager in the group to show support.
Some other workplace issues that may need to be quickly resolved once you have started your transition include:
- a new company identification badge with your new name and photo;
- a new name tag on door/desk/cubicle;
- updating any organization charts, mailing lists, and other references to your old name;
- paperwork for the HR employee database, effective the day of transition, to change the following: new name; gender marker (‘M’ or ‘F’); computer handles and account IDs, if the old ID is inappropriate; e-mail address, if it contains the old name
- restroom use and communicating the decision to other employees;
- new introductions.
For more information about the transition process in the workplace, see Checklist for Transitioning in the Workplace.
Although Bostock v. Clayton County, GA (S.C. 2020) extended Title VII to prohibit employment discrimination based on sexual orientation or gender identity, the Court did not address Title VII’s religious exemption. The exemption allows employers for religious organizations and religious schools to make employment decisions based on religion.
What is unclear, however, is whether religious employers can rely on this exemption to discriminate against LGBTQ+ persons. From the limited case law on the subject so far, it seems courts will look to determine whether the hiring decision was actually based on religious reasons or was instead based on some form of discrimination.
For example, a North Carolina court ruled in an employee’s favor in 2021 in Billard v. Charlotte Catholic High School. In that case, a substitute teacher at a Catholic school was fired after announcing his same-sex engagement on social media. The court determined that the school fired him because of his sexuality, not because his post advocated against Catholicism as the school had argued.
Employees may wish to work in clothing that conforms to their gender identity. Dress codes apply the same way to transgender and nonbinary employees as they do to everyone else. Employers may require uniforms and appropriate clothing. This includes, for example, asking men to shave beards and asking women to keep skirts or dresses at a certain length. They cannot, however, impose separate requirements on any one person or group of people, as that would discriminate.
For health and safety reasons, the Occupational Safety and Health Administration (OSHA) requires that employers allow all employees to have access to bathrooms. OSHA strongly recommends that all employees – transgender or not – have access to bathrooms that match their gender identity.
Currently, no federal law requires employers to address this in a specific way; Employers can legally choose to separate bathrooms for men and women or to have bathrooms that are available to anybody. If an employer has separate bathrooms for men and women, they must allow employees to use the bathroom that correlates with their gender identity. Transgender men should be allowed to use men’s bathrooms, and transgender women should be allowed to use women’s bathrooms. The same goes for any other facilities that are segregated by sex, such as locker rooms.
The Equal Employment Opportunity Commission (EEOC) has successfully sued employers for sex discrimination for denying transgender employees access to the bathroom corresponding with their gender identity.
See OSHA’s Guide to Restroom Access for Transgender Workers for more information.
Maybe. The answer depends on what an employer’s contract with the applicable health insurance company says. Although insurance companies cannot refuse to cover medically necessary gender affirming care, sex reassignment surgery is often not deemed to be necessary. This issue is dealt with by insurance, not employers.
A company may choose to adopt its own policy to provide such health benefits to employees even though they may not be required to otherwise. More and more employers are beginning to provide health benefits specific to transgender employees, such as by covering gender confirmation surgery.
The Equal Employment Opportunity Commission (EEOC) is a federal agency that may sue on behalf of employees who were discriminated against. The EEOC provides guidance for filing a discrimination complaint with itself or another authority.
Federal anti-discrimination laws are enforced by the EEOC. Protections under state and local laws are generally enforced by state or local anti-discrimination agencies, which may be called a fair employment, civil rights, or human rights commission or agency. For more information about your state and local agencies see our page on filing a complaint.
If you are filing a gender identity discrimination charge with the EEOC, you generally must do so within 180 days of the discrimination occurring. If, however, a state or local agency also prohibits gender identity discrimination, then you have 300 days to file.
These deadlines relate to specific discriminatory events. If you experienced multiple events, then you must file within the time frame after the event you seek to challenge – unless you are experiencing ongoing harassment. For ongoing harassment, you may file following the most recent incident.
It is illegal for an employer to fire or otherwise retaliate against an employee for filing a complaint with the EEOC. See our page on whistleblowing for more information.
For filing a charge with an authority other than the EEOC – such as a local or state court – please ask your state or local agency about what law applies to you.
Sexual orientation and gender identity are independent from each other. Not all people who identify as a gender other than their sex at birth have a sexual orientation other than heterosexual. Additionally, not all people who identify with a gender other than their sex at birth consider themselves to be transgender.
Until 2020, the law was unclear on how to handle this distinction. The law was largely up to states and could vary drastically. Today, however, federal law – Title VII – is interpreted to prohibit discrimination based on either sexual orientation or gender identity.
Sex discrimination is when a person is treated differently because of their biological sex. For example, an employer paying women less than male employees would be illegal sex discrimination.
Visit workplacefairness.org for more information on sexual orientation discrimination for more information.