Discrimination Based on Gender Identity

Gender identity refers to the gender with which a person identifies, which may be different from that person's assigned or anatomical gender at birth.

In 2020, the United States Supreme Court heard a case involving a funeral home worker who was fired after coming out as transgender. The Court held that Title VII of the Civil Rights Act of 1964, which prohibits workplace discrimination on the basis of sex, also barred discrimination based on gender identity.

As a result, this type of discrimination is now illegal nationwide. In the same ruling, the Court also outlawed employment discrimination based on sexual orientation.

What Is Gender Identity Discrimination?

Gender identity means the gender with which a person identifies. Sometimes, people use the term "gender expression," which refers to someone's gender-related mannerisms, appearance, style of dress, characteristics, or identity, without regard to the person's designated sex at birth.

Someone's gender expression may or may not conform to his or her gender identity. For example, someone may identify as male, yet wear women's clothing and style his hair in a way that is perceived as feminine.

Under federal law, employers may not single out employees who are transgender or gender nonconforming for differential treatment. For example, an employer may not refuse to hire someone who is undergoing a gender transition, refuse to promote someone who uses a different gender and name than he or she was assigned at birth, refuse to step in if coworkers are harassing an employee for being transgender, or fire someone who begins dressing and grooming in a style that doesn't conform to his or her perceived gender.

Where Is Gender Identity Discrimination Illegal?

As a result of a landmark Supreme Court ruling in 2020, gender identity discrimination in the workplace is illegal nationwide. In Bostock v. Clayton County, Georgia (590 U.S. ____ ), a funeral home employee who presented as male told her bosses that she wanted to live and work as a female. She was fired shortly thereafter.

The Supreme Court held that discriminating against an employee because he or she is transgender is a form of illegal sex discrimination under Title VII of the Civil Rights Act. Using similar reasoning, the Court also ruled that discrimination based on sexual orientation violated Title VII.

The Court's ruling means that employers nationwide are barred from discriminating against workers on the basis of transgender status or sexual orientation in any aspect of employment, including hiring, training, promotion, compensation, discipline, and termination. And because harassment is a type of discrimination under federal law, the ruling also bars workplace harassment based on gender identity or sexual orientation.

Until the Supreme Court ruled on the issue, only about half the states and the District of Columbia prohibited gender identity discrimination in the workplace. Many local governments and private employers also banned this sort of discrimination.

What Does Gender Identity Discrimination Look Like at Work?

If you are currently transitioning your gender, or have recently transitioned and are facing questions about your gender, you might be subject to gender identity discrimination. Here are a few of the issues you might face.

• Harassment. Sometimes, transgender employees are subjected to teasing, jokes, unkind comments, slurs, and threats from their coworkers regarding their gender and gender identity. If you are experiencing unwanted behavior about your gender identity, you should immediately report it and ask the company to put a stop to it.
• Paperwork problems. When you transition, you will probably want to change your legal identification documents and your internal company documents to reflect your gender and your new name, if you change it. In some states, you have the right to change your name by "common law," which means you may simply start using your new name. However, you will almost certainly want to go through the process of formally changing your name in court, so that you can update government identification documents.
• Dress and grooming codes. Gender discrimination can also come up with dress and grooming codes. Your employer should allow you to follow the dress and appearance rules that apply to the gender with which you identify. Your employer may not, for example, continue to require you to wear a men's uniform once you inform the company that you identify as female.
• Restroom facilities. Requiring an employee to use a restroom that does not conform to his or her gender identity is discriminatory. Your employer must allow you to use the restroom facilities of the gender with which you identify. Some employers designate a unisex restroom for these purposes, which can be used by any employee.
• Pronouns and gendered terms. Coworkers and even managers may occasionally slip and refer to you by the pronoun appropriate to the gender from which you have transitioned. This is to be expected, and genuine mistakes are not illegal. However, it may constitute harassment if coworkers or managers continually refer to you by the wrong pronoun in a manner that indicates hostility.

You can find great resources on your legal right—and practical matters to consider when transitioning—at the website of the Transgender Law Center.

Practical Issues for Employers With Transitioning Employees

A variety of practical issues can arise when an employee transitions from one gender to the other. Basic documents—such as ID badges, beneficiary forms, and employee rosters—will have to be updated to reflect the employee's changed gender. Employers will also have to figure out which restroom the employee should use, how to inform coworkers of the change, and whether some workplace training is in order, among other things.

The issue of bathrooms for transgender employees has sparked much debate in recent years. Some states, including California, Washington, Vermont, and Iowa, specifically require employers to allow workers to use the bathroom associated with their gender identity. And, in light of the ruling in Bostock, any employer who forces a transgender employee to use the bathroom that corresponds to their sex at birth is inviting a lawsuit.

If other employees have privacy-related or other concerns, employers can remain on safe legal ground by providing single-occupancy, gender-neutral bathrooms as an alternative to shared bathrooms.

Getting Help With Gender Identity Discrimination in the Workplace

If you believe you are being discriminated against because of your gender identity, you should talk to an experienced employment lawyer who is familiar with transgender issues. A lawyer can help you assess your legal rights, evaluate the strength of your claims, and decide on the best strategy for moving forward.

Updated February 13, 2023