Companies are evolving when it comes to transgender rights – here’s how

Just a few years ago, the clock on social justice for transgender Americans and transgender workers in particular was ticking along. The Equal Employment Opportunity Commission began tracking for the first time workplace complaints by transgender workers. Facebook had expanded its user profile options to 50 choices, including terms like bigender and pangender, recognizing that gender, for many, is not a simple this-or-that question.

The very existence of a transgender population acquired a prominent, humanizing face in 2015 when Caitlyn Jenner appeared on media outlets like 20/20 to speak about coming out as a transgender woman. In 2016, the U.S. Department of Defense officially declared that transgender Americans could serve openly in the military, and could not be discharged “just for being transgender.”

What was changing, too, was our understanding of the number of Americans who identify as transgender. Estimated at 700,000 in 2013, by 2016 better data and perhaps braver self-reporting suggested a number much higher: 1.4 million, according to the Williams Institute at UCLA Law.

Many employers responded to awareness of transgender workers by developing new policies aimed at accommodations, in part because of complaints and lawsuits claiming discrimination. But even though awareness has increased, the reality today for many transgender workers is that the path to getting a job, keeping it, and achieving the same career success as their cisgender counterparts remains fraught with obstacles.

“We are seeing a big rise in employers who say they are supportive — there is a lot more in terms of policies. But what happens on the shop floor is often different from the policy set by the C suite,” says Jillian T. Weiss, a lawyer who specializes in transgender discrimination and is of counsel to Outten & Golden. “When people are having problems, those they turn to for help are the HR staff, and [the latter] often have no idea what to do. They don’t understand what the issues are.”

The question of gender in the workplace has only grown more complicated, in part because “gender in general has been in the air with the #MeToo movement,” says Nancy Rothbard, Wharton management professor. “That really brought gender to the forefront of people’s conceptualization around what’s going on in the workplace — what influences how we experience work.”

Gender will always play a role in workplace dynamics, says Maurice Schweitzer, Wharton professor of operations, information and decisions. “Humans automatically encode gender information about the people around them. According to evolutionary theorists, we are hardwired to do this. It will always take work and training to over-ride this instinct.”

But, he continues: “We should absolutely strive for gender-blindness, and we should encourage the adoption of strategies to promote gender-blind decisions (e.g., evaluating resumes without names, auditioning orchestral musicians behind a curtain). This could involve the steps of asking ourselves how we would evaluate a behavior or decision if that person were of a different gender. By promoting gender-blindness, we will produce a workplace that is more fair and a workforce that is better.”

Some of these issues are playing out now because the social and cultural norms related to how we can present ourselves in the workplace have evolved, says Stephanie Creary, Wharton management professor and an identity and diversity scholar. “There wasn’t as much expectation for being authentic at work until around 10 years ago. And that has changed.”

Younger workers are often more accepting and welcoming of their transgender co-workers, she says. Still, even as cultural norms are shifting in the workplace, nearly every transgender person must make a calculation with potentially adverse consequences. That question, says Creary, is nothing less fundamental than this: “Does the cultural context in which I am embedded allow me to exist in a way that doesn’t foster discrimination?”

Redefining gender – or not

With the increase in the number of workers identifying as transgender has come an increase in discrimination claims. A review of the Westlaw legal database, says Weiss, suggests that from 2005 until 2013, there were between 10 and 20 state and federal court opinions on the subject of transgender employment discrimination each year. “In 2013, that number doubled, and from 2015 to 2018 there were over 50 opinions per year. Since few cases result in a court opinion, the number of actual cases is probably 10 to 20 times greater,” she said.

Gender — what it is, who gets to define it and by what criteria — has become a battleground in the latest round of culture wars. After Obama-era rules and guidelines recognized a nuanced spectrum of gender identities between and distinct from male or female, the Trump administration is working to set the clock back.

The Trump administration has proposed a transgender ban in the military, a move that has drawn pushback from Congress in the form of bipartisan legislation that would allow current transgender service members to continue and new ones to join.

In a separate action, the U.S. Department of Health and Human Services (HHS) is seeking to establish a legal definition of sex under federal civil rights law Title IX. The department argued in a memo for key government agencies to adopt a definition of gender as determined “on a biological basis that is clear, grounded in science, objective and administrable,” according to the memo, obtained by The New York Times.

That would mean sex would be defined as either male or female as determined by the genitals with which a person is born, according to the memo draft.

HHS has pushed for that definition to be adopted by other federal agencies — a move decried by transgender-rights advocates as a threat to legal rights, and as tantamount to their being erased.

“The attempt to redefine sex is troubling, and not only for transgender people,” says Weiss. “For 30 years, the Supreme Court has interpreted sex discrimination to include the Catch-22 of denying opportunities to people, particularly women, if they acted ‘too feminine’ or ‘too masculine.’ That rollback would negate all sex discrimination claims unless the employer had a rule or policy against hiring men or women. The proposed rule runs against 20 years of federal courts protecting trans people from sex discrimination. It would mean employers could enact the most blatant sex discrimination with impunity.”

Transgender workers suffer from mistreatment on several fronts, according to the 2015 U.S. Transgender Survey, which drew 27,715 respondents from across the U.S., its territories and military bases. Nearly a third of those polled said that in the previous year they had been fired from a job, denied a promotion, or had experienced mistreatment (including assault) as a result of gender identity or expression. A third of respondents were living in poverty (as opposed to 12% for the rest of the U.S. population), and transgendered people were unemployed at a rate of 15%, or three times the national average.

Rothbard notes that although many millennials interact with transgender colleagues without skipping a beat, it often takes longer for older workers to adjust. Still, even though the past decade has seen “changing norms in terms of fluid gender identity and an enormous shift in terms of people’s attitudes, I don’t think we’re fully there yet.”

Even within the broad category of transgender, difficulties in the workplace appear to vary. Those who are out as nonbinary transgender workers who are assigned male at birth tend to be discriminated against in hiring, while those assigned female at birth tend to experience differential treatment in the job, according to “Gender Inequality: Nonbinary Transgender People in the Workplace” by Skylar Davidson, published in Cogent Social Sciences in 2016. “Transgender women tend to have worse employment experiences than nonbinary transgender people and transgender men, the latter two tending to have similar outcomes,” Davidson writes. The study also finds that nonbinary people of color, particularly African Americans, have the worst employment outcomes overall.

As for the dissonance between official corporate policies protecting transgender workers and the experience many have when they do lodge a complaint, Rothbard says that even for non-transgender workers, this is not an uncommon course of events in many workplaces around a variety of issues — say, family leave. “There is basically this implementation gap between how the policy is written and the ability of employees to use it effectively,” she says. “It often depends on the supervisor.”

Still, there are not the same legal protections for transgender people in the U.S. as there are for other groups, notes Creary. “There are very clear legal provisions that say no one can discriminate based on race or gender or the fact that you have a disability, to name a few. We do not have the same strong language at the federal level around gender identity and sexual orientation. There are many states that have separate protections for GLBT workers, but that is not universal and there are no federal protections. So when you see people disclosing or sharing their trans identity in the workplace, there is a really high risk there for them in ways that may not be as risky for other groups.”

Getting to best practices

Often, though, co-workers and managers want to do the right thing, but aren’t sure how to engage with a transgender team member or direct report. Is there, for instance, risk around asking a transgender worker questions about their experiences or gender identity?

It is the responsibility of all to normalize people’s identity experience and to be sensitive to how behavior shapes workplace experience, says Creary. “The question is, whose job is it to initiate this conversation? Managers cannot by law target people with stigmatized identities in ways that further marginalizes them. What they can say is, ‘If you have an identity that you feel has been or has the potential to be marginalized at work and want to talk to me about it, you can talk to me about it.’ They can provide the space to have these conversations. You cannot approach a black worker and say, ‘What does it mean to be black in the workplace?’ What you can say is that you are open to talking about race and transgender issues at work and would love to talk about how to make this workplace more inclusive. That makes someone curious. There is really an important power dynamic here on both sides to recognize: Management may fear repercussions from saying the wrong thing, but employees may feel empowered by being able to talk about their identities without fearing discrimination.”

A productive route to a better understanding of the special challenges of a co-worker’s identity — whether it’s race, gender or some other identifying characteristic — can sometimes start with a special overture. “It’s about how do you be a good colleague: Do you invite co-workers who are different from you out for a cup of coffee? The fact that you invited them out goes a long way towards building a strong relationship,” says Creary. “It’s about discussing things we are not comfortable talking about with an open mind. Because we don’t have answers unless we create the space to have difficult conversations, and we need to have these conversations before we can even begin to develop best practices for making our workplaces better.”

Of course, many transgender workers face co-workers and managers who either aren’t sincerely interested in acceptance, or in recognizing discrimination when it happens. Among the proper tools any workplace should have is a human resources department specially trained in how to handle transgender complaints. “Many people are not trained in investigation, and it’s a problem,” says Weiss. “HR will often go to people and say, ‘Did you do this?’ and they say “No,” and so HR says, ‘Oh, well, it’s unsubstantiated.’ They need to understand situations that are unclear or ambiguous are still causing a problem. Number one is having training and understanding the issues. Number two is letting people know what will happen when they come forward to HR. Many times people say they thought about going to HR and were afraid of getting a blank stare.”

Corroboration of a complaint takes many forms, Weiss says, including but not limited to contemporaneous notes, confiding in a third party, emails and texts, social media or on-premises video. “Rules against audio recording should be excused if there is such evidence,” she says. “Witnesses need to be provided the comfort of confidentiality, and procedures for ensuring it. Harassment rarely occurs only once, and employers may seek to observe additional incidents once they know who is involved. Most significantly, investigators need to understand that dismissive tone, ostracism and misgendering can wound as much as words. These are not minor issues. Robust training is important, and investigators also need to be vigorously protected from retaliation.”

Weiss says that despite federal efforts at regressive policies, she sees progress continuing. “Transgender people have been advocated by more people than we’ve ever seen in part because of the military ban. People have tremendous regard for the military, and there have been a lot of stories about excellent troops and the problems they are encountering,” she says. “I think that sensitizes people, and all of the effort to push people back in the closet will result in a big pushback on behalf of trans people that will be all to the positive.”

The continuing evolution of diversity

And what about future waves of workers who are diverse in even more diverse ways? Will established workers always greet the next group of “others” with a certain resistance? “This is certainly not the last iteration of diversity to create both tensions and opportunities in the workplace,” says Schweitzer. “Though we have been wrestling with diversity issues for decades, it is clear that our workplaces are becoming not only more diverse, but also diverse in ways that we could not have imagined a few decades ago. For example, gender and gendered pronouns are evolving. In addition, the religious, ethnic, and cultural backgrounds of our co-workers will continue to present challenges.”

Right now, though, many workers might be receiving mixed signals from high places. On the one hand, there is greater visibility (especially in entertainment) and greater accommodation for transgender people in the workplace. On the other hand, there is everything other sectors are doing to try to roll back acceptance. How do the relative strengths of these two forces augur for trans rights and recognition?

“It’s a really complex problem, because we do have multiple cues in society,” says Rothbard. “We have the political realm and we also have different views expressed within that realm, and we have academia. But I actually think we take our cues from our peers and our own circle of friends, and when that starts to change we start to change, and then there is a tipping point. For some issues it may be faster than others. With transgender issues it may be slower because statistically they are a smaller percentage of the population.”

How immutable are our feelings for those who are different from us? It depends on what the difference is, one study suggests. Implicit bias toward gays and lesbians has decreased markedly in recent years, according to data from four million tests administered to Americans. The study by Tessa E. S. Charlesworth and Mahzarin R. Banaji, “Patterns of Implicit and Explicit Attitudes: I. Long-Term Change and Stability from 2007 to 2016,” published in Psychological Science, showed that bias by Americans toward certain groups has declined over time, but it has declined differently among bias toward age, disability, body weight, race, skin tone, and sexuality.

Implicit attitudes toward the elderly and disabled remained relatively stable over time, and implicit attitudes toward overweight people shifted a bit toward increased bias. But attitudes about sexual orientation, race and skin tone all changed over the past decade, and for the better.

The arc of history points us in the direction of inclusion and acceptance, says Schweitzer. “Just as the integration of women and minorities in the workforce has and continues to face obstacles and set-backs, there is no question that we have made major progress in the last century,” he says. “The relatively recent social and legal acceptance of same-sex couples offers a template for how this sort of change can happen. The president is an influential figure, and the executive branch has a great deal of power. However, every major organization has committed to diversity writ large. In the mid 20th century, diversity was defined rather narrowly, e.g., race and gender. Today, we recognize that diversity comes in many different forms.”