Wednesday, July 31, 2013

OPM Guidance Regarding the Employment of Transgender Individuals in the Federal Workplace

The Office of Personnel Management has issued a policy statement addressing issues pertaining to transgender employees in the federal government.  In particular, OPM reiterates the anti-discrimination policy of the federal government, which includes a prohibition against discrimination on the basis of gender identity and sexual orientation.  (Keep in mind this is only a policy; it does not create substantive rights for transgender individuals.)
The policy begins by defining gender identity (“the individual's internal sense of being male or female”), transgender (“people with a gender identity that is different from the sex assigned to them at birth”), and transition (“individuals [who] find it necessary to transition from living and working as one gender to another”).  Transitioning individuals are not limited to those changing gender through surgical procedures, but also include those employing therapy, hormones, or some combination thereof.  Perhaps the most significant moment of the transition with respect to employment is when the employee transitions to living full-time in the gender with which they identify.

OPM acknowledges that confidentiality and privacy are significant issues for a transitioning employee.  They may be concerned about the impact on or loss of employment and about safety or harassment in the workplace.  Managers should take the utmost care to respect and protect the employee’s right to privacy, just as they would for any employee.  A trainer may be a useful tool for all employees to address questions, concerns, and rights.  A frank discussion with the transitioning employee can be helpful to ascertain his or her concerns about the workplace.

With respect to dress codes, a transitioning employee should adhere to the codes applicable to the gender to which they are transitioning.  Similarly, any new name and the applicable new pronouns should be used at all times.  OPM also provided guidance on correcting agency records to reflect the employee’s new name and gender change.  Insurance coverage does not change for the employee or for their validly married spouse at the time of the transition.  OPM’s Insure website or Insurance program office can assist with any questions.

Bathrooms seem to cause particular angst for the non-transitioning employees.  An employee who has transitioned to living full-time in the gender consistent with their gender identity, should be allowed access to the bathroom and locker room used by that gender.  There is no requirement that the transitioning employee provide proof that they have reached any particular point in their transition (i.e., proof of gender reassignment surgery).  “Under no circumstances may an agency require an employee to use facilities that are unsanitary, potentially unsafe for the employee, or located at an unreasonable distance from the employee's work station.”  If an agency has any questions, it should contact OPM for guidance.

In sum, federal managers and employees are expected to treat transitioning employees with dignity and respect just as they would any other employee.  Questions are to be expected and should be addressed promptly in order to ensure a functional work environment for all.  Kudos to OPM for having the foresight to address this workplace issue.

OPM’s policy can be found at: http://www.opm.gov/policy-data-oversight/diversity-and-inclusion/reference-materials/gender-identity-guidance/

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