The Trump Administration recently decided to revoke the Obama Administration’s guidance detailing schools’ obligations to provide access to bathrooms for transgender students based on the gender they identify with vs. the gender at birth. Their reasoning? This is a decision best left up to each state, something that has already begun in the absence of federal regulations banning employment discrimination on the basis of sexual orientation OR gender identity.
Employees working for organizations known for making diversity a priority were quick to ask their leadership to publicly oppose the President’s action while also reiterating their workplace has policies protecting transgender people. For many it was ‘déjà vu’ having faced similar questions after President Trump announced his proposed immigration travel ban just a few weeks ago, and putting the organization’s commitment to diversity and inclusion to the test once again.
As I discussed in my February 7th blog post about corporate America’s reaction to the immigration travel ban, leadership teams learned an important lesson that having a process in place to evaluate situations and communicate the response in a timely manner can limit or eliminate negative impact on their reputation as being a best place to work.
While the action impacted protections for students who are transgender, some see this as an attack on the rights of gay, lesbian and bisexual Americans. This may help to explain why the public response from companies has been more muted in this instance compared to the 127 mostly technology companies that joined a court brief against the immigration travel ban just a few weeks ago.
Another factor that may be contributing to a more cautious approach is Gloucester County School Board v. G.G., the first transgender rights case being argued before the Supreme Court next month. It centers around the school board’s 6-1 vote denying a transgender student Gavin Grimm the right to use the bathroom that matches his gender identity.
Regardless of your opinion, there is agreement that understanding how gender identity and expression impacts your ability to attract/retain talent as well as customers is no longer optional. The swift and emotional response on both sides provides evidence that a thoughtful approach to your assessment is required.
Know the facts: Media coverage has helped raise awareness but also includes a combination of accurate as well as incorrect facts about this issue. Take the time to learn more about the issue as you gather information that helps define the problem and the current landscape: What is gender identity and expression? How does this impact your workforce? What are your legal obligations? Will creating policies (or lack of them) impact your ability to attract and retain talent as well as customers?
There is a wealth of credible information available from sources that include the U.S. Department of Labor, the Human Rights Campaign and the National Center for Transgender Equality that can help to simplify the process. Here are just some statistics to consider:
- No federal regulations ban employment discrimination on the basis of sexual orientation OR gender identity: According to the Human Rights Campaign, there are only 20 states and the District of Columbia and at least 225 cities and counties that prohibit employment discrimination on the basis of gender identity in employment.
- More likely to be unemployed: Data shows that transgender workers report unemployment at twice the rate of the population as a whole (14% vs. 7%) and more than four in 10 transgender people (44%) who are currently working are underemployed.
- Support for adding protections is growing: A survey conducted by USA Today/Rock the Vote in May 2016 found that by nearly a 2 to 1 margin, voters 18 to 35 years old said they believed transgender individuals should be able to use public bathrooms designated for the gender they identify with, not the sex they were born.
Learn from best practices already in place: Corporate America is leading the way on adopting inclusive policies, benefits and practices for lesbian, gay, bisexual, transgender and queer (LGBTQ) employees and their families for over a decade.
Since its inception in 2002, the Human Rights Campaign Foundation’s Corporate Equality Index (CEI) has tracked the progress employers have made toward achieving full LGBTQ workplace inclusion. Today, 87% of CEI-rated companies provide employment non-discrimination protections based on gender identity to their employees in the U.S. – up from only 5% in 2002 when the CEI was introduced.
The Human Rights Campaign Foundation has created a very useful tool that is a great place to start when conducting your internal review. Transgender Inclusion in the Workplace: A Toolkit for Employers provides human resources and diversity and inclusion professionals with an overview of legal and other issues, such as access to inclusive healthcare and barriers to employment, surrounding transgender inclusion, while outlining current best practices from leading U.S. companies today.
These are some of the areas included in conducting a benchmark gap analysis: providing gender-inclusive facilities, changes to health-care coverage to include medical procedures related to gender transition, dress codes and gender self-identification in confidential HR records or anonymous employee engagement surveys.
If your organization has a LGBTIQ Employee Resource Group, seek their counsel as one of the steps in your information gathering process. The information, policy and practice recommendations, and resources will assist leaders dedicated to building more inclusive work groups, employee networks and companies.
Education and training are key to creating a culture of inclusion and mitigating risk: A combination of education, training and messaging about the business case for creating a more transgender-inclusive workplace will help minimize confusion, build greater sensitivity and lower risk of legal claims.
Understanding who will be impacted by the changes to policies and procedures provides a framework for what information should be communicated and in what form. This includes updating recruiting and onboarding messaging to reflect importance of core values and information about relevant company policies and benefits.
Current employees, especially HR professionals and those with management responsibility, will require additional training regarding codes of conduct, right to privacy, process for handling gender transition and allowing employees to access gender-segregated facilities such as bathrooms corresponding to the gender with which they identify.
Finally, ensure to engage your legal, government relations and community affairs teams who are doing their best to stay on top of the latest information related to gender identity and expression.