A recent Forbes article on the tax implications of infamous whistle-blower Bradley Manning’s planned transition from male to female also made me curious about the HR implications of such a change in an employee’s sexual orientation. What started as a quest to find an answer to whether or not or when Personnel Records needed to be updated quickly became an interesting overview of the complexity of this issue. While not always the last authority on any controversial human rights subject, the American Civil Liberties Union once again provides some general direction on how to handle an employee in an organization who has decided to change their sexual orientation from one sex to the other.
1. Are there laws that prohibit discrimination against transgender employees?
Yes. California, Colorado, Connecticut, Hawaii, Illinois, Iowa, Maine, Massachusetts, Minnesota, Nevada, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, Washington and the District of Columbia all have such laws. Their protections vary. For example, Nevada’s law bans discrimination in employment, housing, and public accommodations; Maine’s law covers those categories plus credit and education.
At least 150 cities and counties have passed their own laws prohibiting gender identity discrimination including Atlanta, Boise, Buffalo, Cincinnati, Dallas, El Paso, Indianapolis, Kansas City, Louisville, Nashville, New Orleans, and Pittsburgh. A list of localities with nondiscrimination laws that cover gender identity and/or expression is available at http://www.transgenderlaw.org/ndlaws/index.htm#jurisdictions.
2. Does an employee have to have undergone sex reassignment surgery in order to be protected by these laws?
No, they do not.
3. Can a person change his or her name to reflect his or her gender identity?
Yes. In some states, through what is called “common law name change,” people may change their name simply by using the new name in everyday interactions. It is free and easy, but does not create the kind of solid paper trail needed to change identity documents.
The other way to change one’s name is to file a petition in court. Most judges will grant a name change so long as they are convinced that the petitioner is not trying to evade debts or the police.
In rare cases, judges have required a transgender petitioner to prove that he or she has undergone medical procedures that show an intention to live permanently in the gender associated with the name desired.
4. Can a person change his or her name and gender marker with the Social Security Administration?
Yes. To change his or her name with the Social Security Administration (SSA) and obtain a new Social Security card, a person needs to submit a court order reflecting the name change. SSA officially requires a surgeon’s letter in order to change a person’s gender marker in its records. However, a letter from a physician documenting that one has “completed all the recommended medical treatment” for “altering one’s body and appearance” or “a gender transition” is frequently enough.
5. Does the law protect a transgender person’s right to use the restroom consistent with his or her gender identity?
There’s no clear answer because very few courts have considered this question.
6. If one spouse in a marriage transitions, is the couple still legally married?
Yes. A marriage is valid unless and until one or both spouses get a divorce or annulment.
Even without a divorce or annulment, legal problems can arise from a spouse’s transition. For example, employers have been known to refuse health benefits to a spouse who is now of the same sex as the employee. Likewise, when one spouse dies, the surviving spouse may have problems collecting inheritance or tax benefits restricted to married couples. There’s very little law at this point on these issues.
As you can see, not all questions have easy and straight-forward answers. However, as it becomes more common for these situations to arise it is all the more important for employers to prepare general policies that reflect current Federal, State and Local law as well as the protect all employees from discrimination. Furthermore, because many of the legal issues as it relates to employment have yet to be fully addressed by the legal system, it makes good business sense to seek out the advice of both Human Resource and Employment Law specialists.