"Hello, Jon, how are you today?” asks a co-worker. You stop in your tracks—shocked, speechless. Maybe you misheard? Not knowing what else to say, you respond, “I’m fine, how are you?” But you’re not fine. What’s the problem?
The problem is that you are a cisgender woman—that is, you identify with the gender assigned at birth—and your name is Joan.
It’s bad enough if a co-worker calls you the wrong name. But, when it’s a name most commonly associated with a gender you don’t identify with, it’s an even greater affront. And that’s how it is, as well, with transgender people and personal pronouns.
According to Transgender Inclusion in the Workplace: A Toolkit for Employers, produced by the Human Rights Campaign (HRC), “transgender” is an umbrella term that refers to people whose gender identity, expression or behavior is different from that typically associated with their assigned sex at birth. The term includes nonbinary, gender-fluid and genderqueer. But according to Healthline, while some nonbinary individuals identify as transgender, others don’t.
Some transgender and gender-nonconforming individuals prefer to use pronouns other than he/him/his or she/her/hers, such as they/them/theirs or ze/hir. Their choice goes to the very core of their identity. Just like cisgender Joan bristled at being called Jon.
How hard is that to understand? Somewhat hard, apparently.
Different Forms of Bias
“Bias against nonbinary people often takes the form of disbelief, disregard and disrespect,” says Michelle E. Phillips, an attorney in the White Plains, N.Y., office of Jackson Lewis.
“I’ve seen a lot of managers and staff who are uncomfortable with the issue in general. Most employees have come to understand that you can’t make remarks about race or religion, for example,” Phillips says. But some people still make discriminatory remarks about transgender and nonbinary people and think that it’s acceptable. “It’s not.”
Taking the position that individuals’ insistence on use of their preferred pronouns is attention-seeking, a trend or political posturing is wrong. “It’s not a fad,” Phillips says. “It’s who they are.”
Religious objections to using a co-worker’s preferred pronouns present “a very interesting challenge,” says Beck Bailey, director of the HRC’s Workplace Equality Program. “LGBTQ [lesbian, gay, bisexual, transgender and queer] people are the only group this kind of objection comes up with,” adds Bailey, who is an out transgender man. “Nobody ever objects to working with an unwed mother on religious grounds because they know that would not be OK. But we’re still fair game.”
Legal Rights in Flux
Using the pronouns employees prefer is more than common courtesy; it’s their civil right. Federal law on the subject arises out of agency and court interpretations of Title VII of the Civil Rights Act of 1964, which expressly prohibits workplace discrimination on the basis of race, color, religion, sex and national origin. According to information provided by Jeanne Goldberg, a senior attorney advisor with the Equal Employment Opportunity Commission (EEOC), Title VII’s prohibition against sex discrimination also bans any employment discrimination based on gender identity or sexual orientation.
The commission’s technical assistance publication, What You Should Know About EEOC and Enforcement Protections for LGBT Workers, states that prohibited acts include “intentionally and persistently failing to use the name and gender pronoun that correspond to the gender identity with which the employee identifies, and which the employee has communicated to management and employees.” Both supervisors and co-workers should use the employee’s chosen name and pronoun “in employee records and in communications with and about the employee,” the EEOC guidance says.
Most employers are well-intentioned, but intentions only go so far. There’s work to be done.
In a 2017 memorandum, however, then U.S. Attorney General Jeff Sessions, in line with some federal appeals courts, wrote that Title VII does not prohibit discrimination on the basis of gender identity. In April 2019, the U.S. Supreme Court agreed to hear a case that will address that issue. If the reasoning in the Sessions memo prevails, Title VII then would have nothing to say with regard to workplace use of an employee’s preferred pronouns.
In the meantime, the EEOC continues to investigate and assess charges involving gender identity discrimination. Other federal law protections include:
- Executive Order 13672, which protects federal contractors and subcontractors from transgender or sexual orientation discrimination.
- The Occupational Safety and Health Administration’s A Guide to Restroom Access for Transgender Workers.
- The U.S. Office of Personnel Management’s Guidance Regarding the Employment of Transgender Individuals in the Federal Workplace.
What’s more, a wave of state and local laws prohibiting sexual orientation and gender identity discrimination has been enacted in recent years. According to a list compiled by the National Center for Transgender Equality, at least 20 states and more than 200 cities and counties have such laws. Some of these—California and New York City, for example—expressly require employers to use a transgender person’s preferred name or pronouns. Others allow individuals to select “nonbinary” or “X” on certain official documents.
But even if a state or local law does not prohibit discrimination based on gender identity, Title VII’s anti-discrimination prohibitions still apply for now, according to the EEOC. Contrary state law is not a defense under Title VII.
Systems, Culture Need Work
Both Phillips and Bailey say that most employers are well-intentioned, but intentions only go so far. There’s work to be done, they say, and the HRC’s toolkit explains in comprehensive detail how to do it. Broadly speaking, there are two main buckets, Bailey notes:
First is the operational side. All of the employer’s systems—including human resource information systems, forms, portals—are built on binary gender identity platforms.
Second is the cultural piece—that which relates to human behavior, feelings of inclusion and greater understanding about gender identity.
“Both of them are kind of huge,” Bailey says.
Employers must consider not only their own information systems, but also those of vendors. They need to create mechanisms for employees to make their pronouns known, allowing their diversity to come through. These can be as simple as asking employees to include their pronouns in their e-mail signature and intranet profile.
“Some companies are starting to do audits, identifying all the places where gender intersects in the workplace,” Bailey says. “Then they can start to make language and policies as neutral or gender-inclusive as possible.”
On the cultural side, employers have to train both managers and employees. Almost all companies have behavior and conduct statements that say we respect one another, Bailey notes. Repeatedly misgendering someone can be a form of unlawful harassment, but even an occasional slip is disrespectful and unwelcoming. “If our intention is to be welcoming and we misgender,” Bailey says, “we have failed at our intention.”
Margaret M. Clark, J.D., SHRM-SCP, is a freelance writer in Arlington, Va.
Illustration by Adam Niklewicz for HR Magazine.