The legal rights of transgender individuals in the workplace are evolving. California law has conferred upon transgender employees the right to be free of workplace harassment and discrimination for several yeas. Until recently, however, there has been little in the way of formal guidance on the issues unique to this population of workers. Employers should familiarize themselves with recently enacted guidelines, regulations and laws, as well as newly proposed regulations, that provide protections to transgender job applicants and employees.

New Regulatory Definitions

The California Fair Employment and Housing Council (FEHC) is the state agency responsible for implementing regulations under the Fair Employment and Housing Act (FEHA). The agency amended California’s Code of Regulations last spring to provide some useful definitions relating to gender discrimination and harassment in the workplace.

The new regulations define “gender identity” as “a person’s self-identification as male, female, a gender different from the person’s sex at birth, or transgender.” “Gender expression” is defined as “a person’s gender-related appearance or behavior, whether or not stereotypically associated with the person’s sex at birth.” “Transgender” is defined as “a general term that refers to a person whose gender identity differs from the person’s sex at birth.” The regulations make clear that a transgender person may or may not have a gender expression that is different from the social expectations of the sex assigned at birth.

The FEHC has proposed amending the regulations to expand the definitions further. For example, under the proposed regulatory changes, the term “gender identity” would be broadened to include gender self-identification not limited to the binary choice of female or male. “Gender identity” would include self-identification neither male nor female or a combination of male and female.

Bathroom and Locker Room Use

Earlier this year, the Department of Fair Employment and Housing issued new guidance for employers regarding employees’ right to use bathrooms and locker rooms that correspond to their gender identities, regardless of their biological sex at birth. The FEHC has proposed regulations that would give these guidelines the force of law.

The proposed regulations provide employers cannot require employees to provide documentation (such as a driver’s license or birth certificate) or proof of a medical procedure, to use particular bathrooms or locker rooms. The regulations, if finalized, would also require employers to protect the privacy interests of employees by such means as providing locks on toilet stalls and staggered schedules for showering in locker rooms.

Governor Jerry Brown recently signed legislation requiring that all single-user bathrooms be labeled as “all-gender.” The legislation will go into effect on March 1, 2017, and affect all public and workplace bathrooms with a single stall (with or without an additional urinal).

Gender-Based Questions

The DFEH has issued guidance cautioning employers against asking job applicants questions intended to discern the applicant’s gender identity. Such questions might include inquiring as to the applicant’s living situation or personal background. The FEHC’s proposed regulations would go further and expressly prohibit employers from requiring job applicants to identify their sex, gender, gender identity, or gender expression. Only limited exceptions would be permitted.

Dress Codes

The DFEH’s guidance warns employers against using dress codes as an indirect means of discriminating against transgender employees. Employers can impose reasonable dress codes that differ for men and women, but must allow employees to dress in a manner consistent with the employees’ gender identification.

The FEHC’s proposed regulations would make it unlawful for an employer to impose any “physical appearance, grooming or dress standard” that is inconsistent with an employee’s gender identify or expression. For example, employers may limit jewelry to a conservative standard, but may not base what jewelry a person may wear based on gender identity.

The Use of Names and Pronouns

The FEHC’s proposed regulations would require an employer to address and identify employees in accordance with the employee’s gender identity and preferred name. An exception would apply permitting employers to reference the gender or legal name identified on an employee’s government-issued identification documents (such as a birth certificate or driver’s license), if mandated to do so by law to meet a reporting requirement.

The proposed regulations would also require employers to refer to employees by the employees’ preferred pronoun choice, including gender-neutral pronouns. Increasingly, many employees wish to be referred to by gender-neutral pronouns such as “they,” and “ze,” instead of the more gender binary pronouns “he” and “she.” This shift in pronoun usage is somewhat reminiscent of the adoption in the 1970s of the title “Ms.,” in place of “Miss” or “Mrs.,” historically used to define females by their marital status. However, the “new” pronouns have yet to be widely adopted.

Tips for Employers

Employers should take steps to ensure that they are acting in compliance with the law and the DFEH’s guidance, including the following:

• Single stall bathrooms should be labelled “all-gender”;
• Application and hiring materials should be reviewed to ensure that they do not require applicants to identify their sex or gender identification;
• Managers and supervisors should be trained to use employees’ preferred names and pronoun use;
• Employers should edit policies and other documents to make them as gender-neutral as possible to avoid claims of bias; and
• As always, ensure that written policies are updated to reflect the current state of the law.