Accommodating Sex Transformations

Transition plans can smooth the rough spots when gender identities change.

By Diane Cadrain Oct 1, 2009
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October CoverKathryn Winters was 33 years old when she decided she had to stop living as a man. "Since birth I was treated as a male," she says, "but I felt something was wrong with that. I tried to conform. But the older you get, the harder it is. There was a limit as to how masculine I could be."

Winters reached that limit in early 2008. Her transition from male to female played out in a workplace—JP Morgan Chase—where peers and supervisors were ready to help her make the change. Moreover, the process could have been particularly daunting because Winters was working in a bank branch at a supermarket, so she had contact with bank customers and was a familiar face to scores of shoppers every day.

Employers haven’t always taken a supportive approach toward gender transition. Managers in some of the country’s most respected organizations—including IBM, Continental Airlines and Lucent Technologies—used to fire star employees upon learning that they were undergoing such transformations.

Times change. Last April, a transgender woman won a jury verdict of $491,000 from the Library of Congress, whose managers reneged on a job offer after learning she was transforming.

And managers are proving far more tolerant: In 2002, the Human Rights Campaign (HRC), an advocacy group for gay, lesbian, bisexual and transgender (GLBT) people, surveyed 319 companies with more than 500 employees each, finding that 5 percent barred bias based on gender identity; by 2009, 66 percent did so. The HRC has been pushing employers to add gender identity to their discrimination policies.

"The country is on a path of increasing respect for gays and lesbians as well, and transgender people are riding the coattails," says Janis Walworth, co-founder of the Center for Gender Sanity in Bellingham, Wash., another organization that assists employers as they strive to resolve transgender issues in workplaces.

Competitive Advantage

"It’s about talent—about creating a workplace with the broadest base of talent you can—because a broader base of talent makes for broader creativity and resonates with a broader customer base," says Ray Flautt, vice president of corporate diversity for JP Morgan Chase.

"We recruit from all over the country, but we pull from a very small talent pool for scientists," including those in the GLBT community, adds Paula Jones, principal diversity consultant for Genentech, a biotech company in San Francisco with about 11,000 employees. "Our policy on gender identity and expression makes a big difference to GLBT applicants and others who experience themselves as different. It sends a message that we’re working hard to respect diversity."

Yet transgender and transsexual people remain a small minority. The American Psychological Association reports that about one in 10,000 males and one in 30,000 females become transsexual. In another estimate, professors Lynn Conway at the University of Michigan in Ann Arbor and Femke Olyslager at Ghent University in Belgium maintain that the inherent number of people who at some point in life will undergo reassignment surgery is one in 1,000 or one in 2,000.

"Because the numbers are low, for many employers it isn’t a practical issue," says Marc Bendick, a member of the Society for Human Resource Management’s Workplace Diversity Special Expertise Panel and an employment economist with consulting firm Bendick and Egan in Washington, D.C. "But the existence of transgender folks in the workplace [...]pushes the envelope on employers’ ability to be flexible and tolerant."

Legal Protection

Lawmakers and courts at federal, state and local levels sometimes protect transgender workers from discrimination. The U.S. Supreme Court in 1989 recognized that discrimination against a female who didn’t conform to female stereotypes was a form of sex discrimination in Price Waterhouse v. Hopkins (490 U.S. 228).

That decision recently cleared a path for Diane Schroer, a male-to-female transsexual and a U.S. Army Special Forces veteran with 25 years of service. Her job offer from the Library of Congress was rescinded after her future boss learned that she was transitioning.

"We made a simple claim of sex discrimination," explains attorney Sharon McGowan, who took Schroer’s case on behalf of the American Civil Liberties Union. "Price Waterhouse says ‘Don’t penalize someone for not conforming to stereotypes.’ In Schroer’s case, the library withdrew the job offer based on sex stereotypes. If a person doesn’t follow a traditional life path or conventional ideas of conformity, it’s a form of sex discrimination to take that into account in employment decisions." McGowan says Schroer didn’t want to work there after all the acrimony.

Meanwhile, Congress is weighing the Employment Non-Discrimination Act (H.R. 2981), which would bar most public and private employers from discrimination based on sexual orientation, transgender status or gender identity.

According to the HRC, as of January 2008, California, Colorado, Illinois, Iowa, Maine, Minnesota, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, Washington and the District of Columbia barred discrimination based on gender identity and sexual orientation. As of April 2008, 98 cities and counties barred discrimination based on gender identity.

"If you’re an employer in more than one jurisdiction, you will deal with this issue," says Jillian Weiss, a transgender woman and associate professor of law and society at Ramapo College of New Jersey and principal of a transgender consulting firm.

Definitions

Gender identity refers to a person’s innate, deeply felt sense of gender. It may or may not correspond to the sex listed on the person’s birth certificate.

Gender expression refers to external characteristics and behaviors such as dress, grooming and mannerisms that are socially identified with a particular gender.

Transgender is an umbrella term for people whose sense of themselves as male or female differs from that associated with their birth sex.

Transsexuals are transgender people who live or wish to live full time as members of the gender opposite to their birth sex. They may have medical treatment to make their bodies congruent with that sex. ​

How to Set Policy

Corporation leaders who want to expand diversity efforts to transgender employees usually start by promulgating nondiscrimination policies.

First, the policy should prevent discrimination by focusing decisions on job-related qualifications, says Bendick. "If a company uses job-relatedness as a criterion, race, sex and transgender status are irrelevant. Interviews should focus on the job, and staff should be trained on that principle.

"Second, a company should create a workforce culture with zero tolerance for harassment."

Model Transition Plan

A transition plan helps guide the employee, managers and peers through gender transition.

These mediated agreements "govern the employee’s transition," says Weiss. With such a document in hand, HR professionals and employees understand their rights and responsibilities. Because some unforeseeable issues may arise, a transition plan is a starting point that can be altered as the process unfolds.

Planning makes certain "there are no missteps, because dialogue is open," explains Maria Ferris, director of diversity for IBM Global, based in Armonk, N.Y.

Most corporate transition plans are adjusted for individual cases.

"Don’t make it a formal contract—make it a guideline," advises Weiss. Define a process: "You don’t want the employee to show up in the dress of the opposite gender before you’ve laid the groundwork."

Boeing’s transition plan guidelines, for example, describe a structured process that covers items such as name change, bathroom use, appropriate pronouns and change of personnel records. The plan defines roles and responsibilities for the transitioning employee, the manager, HR professionals and close work associates. The employee co-authors the plan and agrees to comply. The option for amendment offers flexibility.

Often, the process starts when the transitioning employee contacts HR professionals.

In a phone call, an employee "announced she was ready to start appearing as the opposite gender and living that identity," recalls Jones of Genentech, who has guided two transitions. "We sat down with the employee and listened to everything on her mind. We want to support the employee with as much respect as we can. Our transition management process also includes an educational session with the employee’s co-workers and department head."

At such an education session, says Tej Singh Hazra, manager of corporate diversity for IBM Canada in Markham, Ontario, managers present the situation and explain that the person will be presenting in a different gender. Attendees question the presenter—the meeting is a "safe zone"—and are encouraged to go to the employee.

Boeing holds a similar education session. "We need to create an environment where everyone is fully included and engaged," says Connie Summers, cultural diversity and inclusion manager at Boeing’s Seattle facility. "So, we include everyone—it’s not just education, but dialogue, with an emphasis on the person’s humanity. We provide an open, honest forum for people to share their discomfort. We want to help folks who struggle from a religious point of view move through that. They may not accept it, but we want them to understand it."

Says Jones: "Giving people the option to ask tough, embarrassing questions really takes the tension down."

Co-workers’ Concerns

Some employees "are concerned with the bathroom," says Weiss. "The transgender person has the right to use restrooms that are consistent with their gender identity or expression."

Walworth adds that "Restrooms aren’t what transitions are about. It’s about identity, not about sex."

Other concerns surround co-workers’ religious beliefs. "We explain that the company values diversity, respect and inclusion," says Summers. "We have no expectation of changing people’s minds, but we do ask them to change their behaviors. And, invariably, we see people go from heavy resistance to ‘getting it.’ "

Weiss agrees that it’s important to focus on behaviors, not beliefs. "When co-workers say their religious codes don’t accept this, the answer is that in the workplace, we’re concerned with your behavior, not your religious code," she says.

"Most people want to know ‘How does this impact me?’ " says Walworth. "Most people are afraid of using the wrong name, the wrong pronoun—that’s a difficult thing. People are afraid of being caught in a slip-up. Or, they wonder if the transition will affect the abilities of the co-worker, especially in situations where co-workers help one another, such as police and firefighters. They wonder if the person won’t be as strong, whether their judgment won’t be as good.

"The response should be that minds aren’t changed. People can be easier to work with after the transition, they’re happier, they’re more present."

Winters affirms: "After the transition, I was more confident, more comfortable, more capable, more focused on the job, more productive. Now, I can put 100 percent of my energy into a happier life. I can’t emphasize enough that an employee after transition will be as valuable to the company, if not more."

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The author is an attorney and writer based in West Hartford, Conn., and a member of the Human Resource Association of Central Connecticut.

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