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Transgender legal protections in the workplace

Transgender issues have been a hot topic in Florida and across the U.S. in recent years. Last fall, the U.S. Supreme Court agreed to hear the case of a Virginia transgender student who wants to use the boys' bathroom in his high school. The case is the latest example of a federal court taking the lead on LGBT legal issues when other courts continue to struggle. The case and others like it are shaping the way employers must deal with transgender rights within the workplace.

Being transgender means that someone's "gender identity" differs from the one marked on their birth certificate. Title VII of the Civil Rights Act of 1964 is the federal law that protects employees from discrimination based on sex, race, color, national origin and religion. While the statute is silent on the matter of gender identity, the Supreme Court ruled in 1989 that "sex-stereotyping", or discriminating against an employee for gender nonconformity, was illegal under Title VII.

Since then, some federal appellate courts have held that discriminating against transgender employees for not conforming to stereotypes was also a violation of Title VII. In 2012, the Equal Employment Opportunity Commission took the position that the statute covers transgender employees as written.

Potential issues and finding relief

Where does that leave employers? In the case of restrooms, the current EEOC guidance says that a transgender employee can use a single stall or a gender-neutral restroom if he or she desires, but requiring the use of a separate facility could be seen as discriminatory. Not calling a transgender employee by their chosen name could also cause legal issues.

Employees faced with workplace gender discrimination may find relief by contacting an attorney. Legal counsel could explain the proper way to document the case and help file a complaint with the EEOC.

Source: Orlando Business Journal, "Transgender legal protections: What business owners need to know", Sara Huff, Feb. 23, 2017

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