How to draft model transgender employment policy

Gender identity haunts every aspect of our lives, dictating the outcomes of our conversations, our workplaces, our relationships – even our bath products. Before most infants are named, they are assigned a sex based on the appearance of their external genitalia by a third party. These decisions are dolled out in a typically binary fashion, with no expectations for ambiguity. This is the norm – but has this simplicity led us astray?

Inclusion. Equality. Fairness. Dignity. It’s reasonable to say that all of these words have significant meaning to everyone, particularly at workplaces. All employees should be able to participate in, and contribute to, the progress and success of an organisation by being included, by being afforded equal rights, and by being treated fairly and respectfully. However, sometimes employees feel they cannot be themselves at work and will not fully engage as part of the team if they don’t believe these basic human rights can be realized – if the workplace is not inclusive of all employees or the culture is not forward-thinking. This can be especially true for individuals who transition from one gender to another, or who identify as a different gender than what they were assigned at birth. This article focuses on ideals that need to be followed while trying to create an inclusive workplace for trans people through a Transgender Employment Policy. 

The Need for a Transgender Employment Policy 

The rights of trans people are protected by a range of international and regional mechanisms. Yet, punitive national laws, policies, and practices targeting transgender people, including complex procedures for changing identification documents, strip transgender people of their rights and limit access to justice. This results in gross violations of human rights on the part of perpetrators and society at large thus there exists a need for a policy that addresses the need for basic protections for Transgender rights, a policy that protects them from any kind of discrimination at the workplace because of their gender. It is essential as many organizations these days have employees who are transgender. Everyone can benefit from attracting a diverse range of job applicants irrespective of gender. A transgender person who is supported at work is likely to be a happy and therefore more productive and loyal employee. Some will be transitioning in the workplace, and it is important to support these employees appropriately. 

Aim of Transgender policy 

The basic aim of such a policy should be to foster an inclusive workplace culture where the real emphasis should be placed on valuing people’s abilities instead of limitations. Core values of inclusive culture like proper representation, receptivity and fairness must be adopted as ideals for making the policy. The policy should be aimed at setting guidelines to address the needs of transgender and gender non-conforming employees and clarify how the law should be implemented in situations where questions may arise about how to protect their legal rights or safety of such employees. The policy shouldn’t anticipate every situation that might occur with respect to such employees rather the needs of each transgender or gender non- conforming employee must be assessed on a case-by-case basis. In all cases, the goal must be to ensure the safety, comfort, and healthy development of transgender or gender non- conforming employees while maximizing the employee’s workplace integration and minimizing stigmatization of the employee. 

Important clauses of a Model Transgender Employment Policy 

1. Definition Clause
2. Privacy
3. Restroom Accessibility guidelines
4. Locker room Accessibility
5. Pronouns
6. Gender Neutral Dress Code
7. Support for Employees Transitioning on the Job
8. Health Insurance and Medical benefits
9. Discrimination and Harassment
10. Formation of the Employee Resource Group
11. Selection and Recruitment

Description of Clauses 

The essential clauses which must be included in any Transgender employment policy are detailed below to include explanations regarding what should be kept in mind while framing such clauses. 

Definition Clause:- 

The definition clause must contain some important definitions which explain key terminologies addressing transgenders and their inclusiveness. The definitions provided in the policy are not intended to label employees but rather to assist in understanding the policy and the legal obligations of the company. Employees may or may not use these terms to describe themselves. Some definitions are as follows: 

1. ‘Trans’ or ‘transgender’ describes people whose gender identity differs from their sex assigned at birth. They are umbrella terms covering people who:

– are intending to undergo, are undergoing, or have undergone gender reassignment at any stage; 

– identify as having a gender different from that which they were assigned at birth and are planning or have had medical interventions such as hormones or surgery; 

– identify as having a gender different from that which they were assigned at birth, but who are not planning any medical intervention; and/or, 

– are non-binary – that is, they are not solely male or female. They may define themselves as both, neither or something entirely different. They may or not have medical interventions to align their bodies with their non-binary gender identity.

2. ‘Transitioning’ is the process undertaken by a trans person in order to bring their gender presentation into alignment with their gender identity. This often involves dressing differently, using a different name and pronoun (eg she, he or they) and changing official documentation. It may involve various types of medical or surgical treatment, although this is not the case for all trans people.
3. Sexual orientation: A person’s physical or emotional attraction to people of the same and/or another gender. Straight, gay, and bisexual are some ways to describe sexual orientation. It is important to note that sexual orientation is distinct from gender identity and expression. Transgender people can be gay, lesbian, bisexual, or straight, just like non-transgender people.

Privacy Clause

Transgender employees have the right to discuss their gender identity or expression openly or to keep that information private. Thus, it must be made clear through a policy that transgender employee gets to decide when, with whom, and how much to share their private information. Information about an employee’s transgender status (such as the sex they were assigned at birth) which can constitute confidential medical information under privacy laws. It must be ensured that management, human resources staff, or coworkers do not disclose information that may reveal an employee’s transgender status or gender non-conforming presentation to others.  Such kind of personal or confidential information may only be shared with the transgender employee’s consent and with coworkers who truly need to know to do their jobs.

Gender-Neutral Bathrooms or Bathroom usage guidelines 

The gender-neutral bathroom can be hugely helpful for trans people as it creates a space that allows such people to know they are welcomed there and can feel comfortable when they choose to socially transition. If it’s not possible to add gender-neutral bathrooms for any reason, an alternative solution is creating provisions that allow trans employees to safely use the bathroom for the gender they identify with, regardless of their sex at birth. The policy must state that employees shall have access to the restroom corresponding to their gender identity. Any employee who has a need or desire for increased privacy, regardless of the underlying reason, should be provided access to a single-stall restroom, when available. That is, transgender women must be permitted to use the women’s restroom, and transgender men must be permitted to use the men’s restroom. That decision should be left to the transgender employee to determine the most appropriate and safest option for them. Some employees –transgender or non-transgender – may desire additional privacy. Where possible, an employer will make available a unisex single-stall restroom that can be used by any employee who has a need for increased privacy, regardless of the underlying reason.

Locker Room Accessibility 

The policy should be framed in a manner that ensures all employees have the right to use the locker room that corresponds to their gender identity. Any employee who has a need or desire for increased privacy, regardless of the underlying reason, can be provided with a reasonable alternative changing area such as the use of a private area or using the locker room that corresponds to their gender identity before or after other employees. Employers should create private changing areas using stalls or curtains.

Further, where showering facilities are necessary, it is best for the privacy of all employees to have individual stalls. Again, where building facilities and options are limited, having at least one private, single-stall shower will accommodate employees desiring additional privacy. Employers should grant unrestricted restroom access and use according to an employee’s full-time gender presentation. Any alternative arrangement for a transgender employee should be provided in a way that allows the employee to keep their transgender status confidential.

Pronouns 

Introducing oneself using gender pronouns may seem unnecessary to many people, but one can’t always assume someone’s gender pronouns just by appearance. Supporting and standing in solidarity with transgender and gender-nonconforming people means using and respecting their correct gender pronouns. The policy should aim to create a culture where everyone feels comfortable introducing themselves with pronouns. 

Provisions must state that an employee has the right to be addressed by the name and pronoun that correspond to the employee’s gender identity, upon request. A court-ordered name or gender change is not required. The intentional or persistent refusal to respect an employee’s gender identity (for example, intentionally referring to the employee by a name or pronoun that does not correspond to the employee’s gender identity) can constitute harassment and is a violation of this policy. If one is unsure what pronoun a transitioning coworker might prefer, one can politely ask the coworker how they would like to be addressed. Another proactive step that could be taken is to include gender pronouns in their email signatures or wear pins so as to make it easy for their colleagues to identify gender identities one another.

Gender Neutral Dress Codes 

In some cases, companies have dress code requirements that differ for men and women. For a transitioning transgender employee, the switch between clothes for men and clothes for women necessitates picking a juncture in the transition which can be awkward and make the person feel self-conscious.Therefore, the policy should specifically provide for Gender-Neutral dress codes. It must state that the company does not have dress codes that restrict employees’ clothing or appearance on the basis of gender. Transgender and gender non-conforming employees must have the right to comply with company dress codes in a manner consistent with their gender identity or gender expression. 

Transition 

A business that includes “gender identity” in its non-discrimination policy should be prepared to manage a gender transition. The policy should include protocols for gender transitions that clearly delineate the responsibilities and expectations of transitioning employees, their supervisors, colleagues, and other staff. Should an employee approach their manager or human resources with the intention to transition, be prepared by having gender transition guidelines on file. These guidelines can be in the form of an informal or formal document that is available to all human resources professionals as a resource to consistently and appropriately manage the situation and helps human resources feel adequately prepared.

Workplace transition guidelines should be flexible enough to tailor to specific needs of a transitioning employee, while specific enough to provide a consistent framework that eliminates confusion and potential mismanagement. For example, one employee may prefer a quick start in which all his/her co-workers and peers are informed about the transition at the end of the workweek, and comes to work the following week presenting in the new/desired gender role. Another employee may prefer a more gradual transition, in which colleagues are notified of the transition plan, but the employee does not actually present in the new gender role for several weeks. However, in both cases, the same designated contact in human resources is responsible for helping each transitioning employee and the employee’s supervisor manage the workplace transition process.

Discrimination/ Harassment 

The policy must set forth that it is unlawful and violates the policy to discriminate in any way (including, but not limited to, failure to hire, failure to promote, or unlawful termination) against an employee because of the employee’s actual or perceived gender identity. Additionally, it also is unlawful and contrary to this policy to retaliate against any person objecting to, or supporting enforcement of legal protections against, gender identity discrimination in employment. It must be ensured that the company is committed to creating a safe work environment for transgender and gender non-conforming employees. Any incident of discrimination, harassment, or violence based on gender identity or expression should be given immediate and effective attention, including, but not limited to, investigating the incident, taking suitable corrective action, and providing employees and staff with appropriate resources. 

Health Insurance Benefits 

Transgender people face many forms of discrimination in the provision of health insurance. The company, as a consumer of group health insurance products, can advocate on behalf of the transgender people insured on its group health insurance plans. The company should work with its insurance carriers or administrators to remove transgender exclusions and provide comprehensive transgender-inclusive insurance coverage. Transgender people also face discrimination in the provision of ealthcare. Unless the company operates its own healthcare centers or clinics for employees, it has relatively little control over the provision of healthcare. So policy should contain a provision that the company will only enter into health insurance contracts that includes coverage for transition-elated care.

Formation of the Employee Resource Group 

The policy must create provisions for the formation of Employee Resource Groups for LGBTQ+ as they are considered as agents for protecting the diversity and increasing inclusiveness in a company. LGBTQ-based ERGs have the potential to mitigate such costs and help increase workplace inclusion and acceptance. Once established, they can work with top executives t craft non-discriminatory policies making clear that harassment and discrimination against trans employees will not be tolerated. They can run sensitivity training sessions to help non-trans employees understand their colleagues. They can work toward health care benefits that include transition resources for transgender employees, as well as specify exact policies regarding the use of bathrooms based on gender identity. ERGs can and do establish comfort levels in the workplace where transgender employees find it easier to be themselves, with no need to lie about their personal lives or mislead co-workers as to who they really are.

Selection and Recruitment 

It must be made clear that people who have already transitioned have no obligation to disclose their gender history. Job applicants and interviewees will not be asked their gender identity during the recruitment process – it is not a relevant criterion in selection. Neither is there any obligation for a transgender person to disclose this as a condition of employment. If they choose to disclose, this is not in itself a reason for not offering employment, and non-disclosure or subsequent disclosure is not grounds for dismissal.

Appointing officers who become aware that an applicant is trans will maintain full confidentiality in relation to this. To open organizations to a more diverse staff that includes trans and gender-nonconforming people, as well as other marginalized groups, steps and initiatives must be taken to reduce the implicit bias that prevails in hiring and recruitment practices.

When it comes to trans employees, true inclusion is not just about creating a more diverse workplace; it’s also about making sure organizations are treating all employees equitably when it comes to opportunities, benefits, and people’s everyday experiences when they go to work. Framing an effective policy can be said to be the first step towards inclusive workplaces. It depends on the implementation of such policies to achieve the aims behind such policies. All the basic essential policies like privacy, health insurance benefits, the formation of employee resource groups, etc. help to make a workplace inclusive. Moreover, it depends upon how the company uses its human resources to eliminate bias and judgment in its employees as they are the people who will ultimately make an inclusive and diverse workplace that respects every employee as they are without any stigma attached to their distinct identity. 

Inclusion and diversity are fundamental to our culture and core values, fostering an innovative, collaborative and high-energy work environment. Ungender recognizes that each person has unique strengths. And by embracing those strengths, we all deliver high performance—together. We commit ourselves in creating effective transgender employment policy keeping in mind the values and ethos of your organization.