Understanding the Basics of Gender Identity Discrimination

Over the last year, gender identity has continued to gain prominence as a central topic of national conversation. While activists believe that much of this attention has had a positive impact on the transgendered community, most members of this community feel that society still has a long way to go in terms of both understanding and acceptance.

Although only time will tell how the national tide continues to develop around this topic, one issue that also remains in flux is gender identity discrimination. This term refers to employer discrimination that occurs as a result of an employee’s gender identity. Common examples of this form of discrimination include:

  • Firing an employee after finding out about their planned transition or current gender identity
  • Not allowing a transgender employee to access a workplace restroom that is available to others
  • Directly harassing a transgender employee or allowing harassment by other employees

While those are several common examples of gender identity discrimination, there are many more negative actions an employer can take that fall into this category of discrimination.

The current legal state of gender identity discrimination

As mentioned in the previous section, this form of discrimination is currently in flux. The reason is there aren’t currently any federal laws that specifically prohibit these forms of discrimination. While legislative efforts are currently in motion, nothing has been set in stone. That being said, there are examples of case law that interpret sex discrimination laws to encompass gender identity. There are also various forms of protection available in a total of 18 states.

Educating employers about gender identity

Even though there are plenty of examples of employers who have knowingly discriminated against transgendered employees, there are also many employers who want to understand this issue but still have questions. While it’s recommended for employers to seek the proper HR training for themselves and the rest of their organization, a basic primer on this topic is a good starting point.

The term gender identity is used to describe how an individual self-identifies. The way that the majority of the population self-identifies as a man or a woman is consistent with their anatomical sex from birth. However, for transgendered people, their identification does not align with their anatomical sex or assigned gender.

The two other terms employers should know are gender expression and transitioning. Gender expression refers to how society uses visual cues like haircut or names to view someone’s sex, while transitioning refers to a transgender person who is in the process of modifying their physical characteristics to reflect their gender identity. Transitioning can range from someone simply changing their hairstyle to a person having gender reassignment surgery.

Legal protections for transgendered individuals

If an individual is the victim of gender identity discrimination, they likely have questions about whether or not they’re protected by specific laws. Since there’s not currently a specific set of federal laws that provide legal protection for gender identity discrimination, the laws most commonly asked about are sexual orientation discrimination laws, sex discrimination laws and disability discrimination laws. Here is the basic information transgendered individuals should know about those laws:

Sexual orientation discrimination laws
As a legal concept, sexual orientation refers to whether an individual is heterosexual, homosexual or bisexual. Currently, employment discrimination based on sexual orientation is illegal in 18 states and the District of Columbia. While gender identity is often a completely separate issue from sexual orientation, five states use sexual orientation discrimination laws to provide explicit protection for transgender people. Those states are Washington, New Mexico, Minnesota, Maine and Illinois.

Sex discrimination laws
Title VII is the law that makes sex discrimination illegal. Previously, federal courts had made it clear that the protections offered by Title VII did not apply to transgendered people. However, in more recent rulings, some courts have determined that both Title VII and other statutes about sex discrimination do provide protection to those who are transgendered. Because the application of sex discrimination laws to cases involving gender identity discrimination is still an area that’s in flux, the best course of action for a potential plaintiff is to consult with an experienced attorney about this matter.

Disability discrimination laws
Despite the fact that transsexualism is recognized as a medical condition, disability discrimination laws do not apply to transgender people. In fact, state laws in Virginia, Texas, Oregon, Oklahoma, Ohio, Nebraska, Louisiana, Iowa and Indiana explicitly exclude transgendered individuals from protection.

What individuals should do about gender identity discrimination

Although it can be frustrating for transgender individuals to realize that there aren’t laws specifically focused on gender identity discrimination, protection may be available in the form of laws such as a 2009 federal law that protects transgender people from hate crimes. The best way for any victim of gender identity discrimination to determine which (if any) legal avenues are available is to meet with an attorney who has experience in this area of the law.