What Rights Do Transgender People Have in the Workplace?

The California Fair Employment and Housing Act (“FEHA”) sets out the rules that protect employees from discrimination, harassment, and retaliation by their employer.   One categorical group that is covered under this Act is gender, gender identity, and gender expression.  Gender identity refers to the gender with which a person identifies.  It is essentially internal and encompasses the feelings one has about their own personal gender and can be an integral part of a person’s sense of self. Gender expression, on the other hand, is the way in which a person expresses their gender externally.  This may fall in line with societal norms of gender, though it is not restricted to these norms.  For example, a transgender man may choose to wear a dress even though that may not necessarily fit in with societal norms.  Since the term “transgender” refers to an individual whose self-identity does not conform to the gender assigned at birth, they fall into the category of gender and gender identity and are therefore protected under the Fair Employment and Housing Act.

The California Department of Fair Employment and Housing (“DFEH”) recently issued guidelines on the rights of transgender people in the workplace.  The guidelines mention two types of gender transition: social and physical.  A social gender transition involves a process of socially aligning one’s gender with the internal sense of self, similar to their gender identity. Physical gender transition refers to medical treatments a person undergoes in order to physically align their body with their gender identity.  The guidelines specifically state that in order to be protected under the law, a transgender person does not have to complete any particular step in either gender transition process, and an employer does not have the right to base any accommodation or treatment on this basis.

When it comes to implementing dress codes and grooming standards, the guidelines state that regardless of an employee’s assigned sex at birth, transgender individuals are allowed to dress in a manner that conforms to that individual’s gender identity. For example, an employer must allow a transgender man to dress in the same manner that any non-transgender man would.  Similarly, a transgender employee has the right to use the restroom or locker room that corresponds to the employee’s gender identity.  While unisex single restrooms may be installed for added privacy, an employer does not have the right to force any employee to use this restroom.

It is important that you know and understanding the rights you are entitled to in the workplace as an employee.  If you believe you have been discriminated against at work based on your gender, gender identity, or gender expression, you should consult an employment attorney to learn your rights.

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