Transgender, Gender-Fluid, Nonbinary, and Gender-Nonconforming Employees Deserve Better Policies

We’re in the midst of a fundamental transformation in how society thinks about gender. With transgender people on the cover of magazines, prominent celebrities challenging gender norms in fashion, and the mainstreaming of people who identify as neither men nor women, the last few decades of cultural trends have brought new ideas about gender to the forefront. Nowhere is this more apparent than in the attitudes of Millennials and Gen Zers, who are more likely to know someone who uses gender-neutral pronouns and to embrace fluid and gender-nonconforming fashion.

Despite this, our workplaces lag behind these demographic and cultural shifts. The National Center for Transgender Equality’s 2015 U.S. Transgender Survey revealed that one in six respondents who had ever been employed reported being fired, denied a promotion, harassed, or attacked because of their gender identity or expression. At Stanford University, Dr. Alison Fogarty and I analyzed similar stories of discrimination from dozens of people under the transgender umbrella. This group included transgender men and women, gender-fluid people, nonbinary people, cisgender but gender-nonconforming men and women, and many others who challenged societal gender norms.

What became apparent over the course of this research was that even organizations that have some understanding of “transgender issues” are poorly equipped to respond to gender-nonconforming employees. In their efforts to create inclusive policies and practices for trans people, even progressive organizations can inadvertently entrench outdated and restrictive norms about gender.

The answer isn’t more policy, but better policy. Through our research, including the personal stories included in this article, we identified four ways company leaders can create policies that empower individual agency, make room for experiences outside of the gender binary, and ensure access to resources and quality of working life for people of all gender identities and expressions.

Interpret Nondiscrimination Policies in a Way That’s Actually Effective

Existing policies that ban discrimination on the basis of gender identity and expression are usually worded as well as they should be, but they’re rarely enforced in a way that’s actually protective. Most organizations — including some of the most progressive companies — interpret this policy as, “If you identify as transgender, we will not discriminate against you.” This interpretation requires transgender, nonbinary, and gender-nonconforming people to out themselves for their own protection, exchanging their privacy for support. For example, gender transition policies often include company-wide emails to announce an individual’s gender transition, as well as company-wide trainings.

When training individuals on company policy (especially recruiters, hiring managers, and people managers), explicitly state that acting in accordance with nondiscrimination policies requires:

• Reducing the amount of gender information collected unless absolutely necessary
• Not assuming individuals’ gender identities or pronouns
• Respecting the pronouns individuals use for themselves
• Providing opportunities for individual self-identification beyond the binary “man” and “woman”
• Building gender-inclusive facilities, like bathrooms and locker rooms
• De-gendering dress codes in favor of more specificity

Examine Your Hiring Practices

Hiring practices were one specific place where we identified the systemic failure of inclusive policy. Hiring managers typically expect trans people to self-disclose during the hiring process. Attempts at trans inclusion tended to classify individuals as either “male” or “female” and didn’t make space for those in between or outside the binary, and they didn’t address why such a question would be necessary in the first place. For example:

Sawyer, a trans man who used he/him pronouns, applied to a company early on in his transition where his interviewer aggressively asked him his pronouns. When Sawyer mentioned that he was fine with either he/him or she/her, the interviewer refused to take that as an answer, saying, “You need to choose right now. You need to be comfortable, so you need to tell me.”

Cameron, a gender-fluid person who used both he/him and she/her pronouns, had difficulty finding a job. At one career fair, while Cameron was dressed in feminine clothing, recruiters gave her a wide berth due to her appearance. At another career fair, once Cameron mentioned his gender fluidity, a recruiter offered a weeklong assignment only if Cameron promised to dress “consistently.” Cameron found that the only way to secure employment was to hide any mention of gender fluidity and try to pass as a cisgender man in the workplace, a compromise that got her a job but wreaked havoc on her mental and emotional well-being.

Rethink Dress Codes

Policies that extend existing gendered policies (like dress codes) and access to facilities (like bathrooms and locker rooms) to cover trans employees inadvertently exclude nonbinary, gender-fluid, and gender-nonconforming people. These policies were designed for a time where trans people could only receive workplace recognition if they sought to blend in with stereotypical ideas of what it means to be a man or a woman. Yet, as more people challenge the gender binary altogether, these policies lose their usefulness — not only for trans people, but also for cisgender people who don’t wish to wear the professional clothing typically expected of their gender.

More inclusive dress codes would remove gendered language and use greater specificity as to acceptable and unacceptable clothing, framed in terms of functionality (e.g., “that does not impede ability to lift 50 pounds”) or legitimate business purposes (e.g., safety, easy identification of employees, or branding). If disputes occur, these criteria can be the basis for a conversation about specific attire.

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