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date: 17 October 2019

Transgender and Nonbinary Gender Policy in the Public Sector

Summary and Keywords

Our understanding and treatment of gender in the United States has evolved significantly over the past four decades. Transgender individuals in the current U.S. context enjoy more rights and protections than they have in the past; yet, room for progress remains. Moving beyond the traditional male–female binary, an unprecedented number of people now identify as transgender and nonbinary. Transgender identities are at the forefront of gender policy, prompting responses from public agencies at the local, state, and federal levels. Because transgender individuals face increased rates of discrimination, violence, and physical and mental health challenges, compared to their cisgender counterparts, new gender policy often affords legal protections as well as identity-affirming practices such as legal name and gender marker changes on government documents. These rights come from legal decisions, legislation, and administrative agency policies. Despite these victories, recent government action targeting the transgender population threatens the progress that has been made. This underscores the importance of comprehensive policies and education about transgender identities to protect the rights of transgender people.

Keywords: gender, gender identity, gender policy, LGBTQ+, transgender, nonbinary, transgender policy, nonbinary policy, legal protections, anti-discrimination, LGBT politics

Introduction

Sex and gender are complex demographic categories that prompt policy and human resources responses at both the individual and organizational levels (Elias, 2017). During the last four decades, transgender and gender-variant issues have become more visible in daily life and public affairs (Taylor, 2007).1 In 1975, Minneapolis became the first city in the United States to prohibit discrimination based on gender identity or expression (Colvin, 2007). Since then, many states have made strides with transgender-inclusive laws, including permitting people to use the public restroom that aligns with their gender identity (“Understanding Transgender,” 2017). At the federal level, the Obama administration was a strong proponent of transgender rights, taking the position that that Title VII of the Civil Rights Act of 1964 applied to claims of discrimination based on gender identity (Elias, 2017; “Understanding Transgender,” 2017). Several state jurisdictions have also added a third gender marker option (an “X” instead of an “F” or an “M”) on state-issued identity documents, an important step for nonbinary people—those who identify outside of the male–female binary (District of Columbia Department of Motor Vehicles, 2017; NY A08524, 2017; Oregon Judicial Branch, 2017; Gender Recognition Act of 2017, 2017; “Act Relative to Gender Identity,” 2017; State of Oregon v. Shupe, 2016; Vermont Department of Public Safety Law Enforcement Advisory Board, 2018).

Gender identity and expression are often thought of in the context of sexual orientation, though they are not necessarily related (Colvin, 2007). Transgender policy has historically and politically been linked to gay and lesbian policies. However, sexual orientation protections policies do not cover transgender and gender-variant people, despite the fact that gay/lesbian and transgender identities are often conflated (Taylor, Lewis, Jacobsmeier, & DiSarro, 2012). Commonly, state-level protections focusing on gays and lesbians have been passed and then later used to support the passage of similar legislation for transgender people (Elias, 2017). Transgender and gender-variant people face discrimination and violence that cisgender gays and lesbians do not (Colvin, 2007). When surveyed separately from lesbian, gay, and bisexual people, Badgett, Lau, Sears, and Ho (2007) found that transgender people reported similar or higher levels of employment discrimination. The authors also found that transgender people report high rates of unemployment and very low earnings.

Transgender individuals have a unique set of mental and physical health needs that should be taken into account (Stroumsa, 2014). These needs are compounded by prejudices against transgender people within both the medical system and society at large. Transgender people have a complicated history with medicine—particularly, transgender identity being classified as a mental illness (Stroumsa, 2014). Most recently, the American Psychological Association approved a change of gender identity disorder to gender dysphoria in the DSM-V, a significant move toward depathologizing gender variance. In the United States, individuals generally secure health coverage through employer-provided group plans, government-subsidized plans (like Medicare and Medicaid), or an individual plan purchased via state insurance exchanges (Human Rights Campaign, 2015). Doctors’ offices and other healthcare centers can frequently be sources of stress for transgender and gender-variant people (Stroumsa, 2014). Medicaid and many private insurance plans may specifically exclude hormone replacement therapy (HRT) and gender confirmation surgeries for trans people (Currah, 2008). The Affordable Care Act (known colloquially as Obamacare) bars plans offered on Healthcare.gov from discrimination based on gender, which has been interpreted to include transgender individuals (Mullaney, 2018). It is unclear what the future of transgender coverage under the ACA will hold, considering the Trump administration has stated that it plans to roll back this rule against transgender discrimination (Pear, 2018).2 However, many large private sector employers have taken steps to actively remove exclusions on transgender healthcare from their employer-provided plans (Human Rights Campaign, 2015). Companies like Amazon, Apple, and IBM cover gender-affirmation surgeries (Mullaney, 2018). Employers can provide transition-related care through their employer-provided plans by negotiating out exclusionary statements and negotiating in affirmative coverage (Human Rights Campaign, 2015).

According to the American Public Health Association (2016), policies and practices that exclude transgender and gender nonconforming people have a negative impact on gender-variant health by permitting discrimination and reinforcing stigma. Inclusive policies and practices are those that recognize transgender and gender-nonconforming identities as valid and deserving of equal consideration and treatment. Denial of rights for LGBTQ people can result in discrimination in housing and jobs; lack of benefits; harassment and stress; and risk-taking behaviors (Marks, 2006). Transgender and nonbinary gender policy in the current U.S. context impacts individuals within the United States and public servants. Some of the most pressing transgender and nonbinary gender issues include sex-based discrimination; workplace, education, and healthcare policy; and gender markers on state-issued identification documents. These realms of policy and practice take different forms in different contexts, from individuals representing their identity on forms and state-issued documents, to public servants using restroom facilities, and situations involving institutions of higher education.

A Note About Terminology

Language describing gender identity is constantly evolving and changing. Gender identity and sex are frequently conflated, but they in fact describe different concepts. Sex refers to physical sexual characteristics including genitals and secondary sex characteristics and has two categories, male and female. Sex is what current terminology calls “assigned at birth,” meaning that people do not self-identify their sex when they are born; rather, it is assigned to them by medical professionals, the state, and their parents. Infants are assigned a sex usually based on their external anatomy. Gender identity is how one conceptualizes and thinks about one’s own gender, and how people perceive and present themselves. This may align with their sex assigned at birth, or this may be different from their sex assigned at birth. Gender identity and sexual orientation are also often conflated. Sexual orientation refers to whom one is sexually and/or romantically attracted (i.e., whether one is straight, gay, bisexual, etc.) and is separate from one’s gender identity.

“Transgender” describes a person whose gender identity is incongruous with the sex assigned at birth. Transgender persons may identify within or outside the gender binary. It is an umbrella term that covers all people with a gender identity that is different from sex assigned at birth. Trans people (“trans” is shorthand for transgender) may identify within the male–female gender binary (e.g., a person who was assigned male at birth but identifies as female), or they may be nonbinary. Nonbinary people are people whose gender identity falls outside of the gender binary. Cisgender people are people whose gender identity and assigned sex at birth are the same—for example, a person who was assigned female at birth and identifies as a woman is cisgender. Cisgender identities fit into the gender binary, as they are either male or female.

What was permissible—even embraced—terminology 15 years ago may be considered inaccurate and even offensive today. The term “transsexual” is no longer viewed as an appropriate way to refer to transgender people. Although some trans people may identify with this word and use it to describe themselves, it is by many considered an outdated and offensive term, largely due to its reference to sex and anatomy. Use of the term “transsexual” remains strong in the medical community because of the DSM’s prior use of the diagnosis “Transsexualism” (changed to “Gender Identity Disorder” in DSM-IV) (Fenway Health, 2010). “Transgendered” is also considered offensive; it has been compared to using “colored” versus “person of color” (Lopez, 2015). Herman (2010) furthers this comparison, saying, “One problem with this label was that it implied something happened to make the person ‘of color,’ which denied the person’s dignity of being born that way.” Transgender is an adjective, whereas only verbs can be transformed into participles by adding “-ed” to the end of the word. Similarly, “transgender” is not a noun; therefore, one would say “a transgender person” or “transgender people” as opposed to simply “a transgender” or “transgenders.”

Transgender Policy Impacting Individuals

Transgender policy in the United States has evolved significantly over the past four decades. Transgender individuals in the current U.S. context enjoy more rights and protections than they have in the past; yet there remains room for progress. Throughout the 1970s, federal courts held that Title VII did not protect transgender and gender-variant people from discrimination (Colvin, 2007). However, in 1989 with Price Waterhouse v. Hopkins, this began to change (Colvin, 2007; Elias, 2017). Ann Hopkins claimed that her employer, Price Waterhouse, denied her partnership two years in a row on the basis of her lack of conformity to typical feminine stereotypes (Legal Information Institute, n.d.). This ruling “determined that ‘gender stereotyping’ cannot be a component of promotion, and such actions violated Title VII of the Civil Rights Act of 1964” (p. 341) and opened the door for transgender plaintiffs to make claims that they were discriminated against on the basis of failure to conform to sex stereotyping. In March 2005, the Sixth Circuit Court cited Price Waterhouse v. Hopkins in its ruling in Barnes v. City of Cincinnati. Philecia Barnes, a pre-transition transgender woman, passed the sergeants’ exam but then failed the probationary period required to become a police sergeant in the Cincinnati Police Department (Barnes v. City of Cincinnati, 2005). Barnes brought suit against the City of Cincinnati, claiming that her failure of the probationary period was due to her failure to conform to masculine sex stereotypes. The Sixth Circuit court held that Barnes’s Title VII claim was actionable and ruled in her favor. Price Waterhouse v. Hopkins and Barnes v. City of Cincinnati are major legal precedents for sex discrimination cases that fall under Title VII (Colvin, 2007). Courts have shown their support for transgender and gender-variant employees to express their gender identity in the workplace. Additionally, all states also allow people to change their gender on at least one form of legal documents to better reflect their gender identities as well.

Transgender Policy in the Workplace

Sexual orientation has increasingly been included in the list of protected classes in public-sector workplaces; however, gender identity is frequently neglected (Elias, 2017). Unsurprisingly, transgender and gender-variant people were marginalized within or excluded from the incipient gay rights movement (particularly in the 1970s to 1990s) because they were viewed as a threat to political progress (Taylor et al., 2012). The 2011 National Transgender Discrimination Survey found that respondents experienced double the rate of unemployment, near universal harassment on the job, and considerably greater loss of jobs and careers as cisgender people did (Grant et al., 2011). Additionally, transgender people who are employed report a higher amount of experiences with transphobia, internalized transphobia, and stigma related to mental health than transgender people who are unemployed (Christian, 2017, p. 1). Colvin (2007) found a strong link between economic discrimination and violence, concluding that the workplace can be one of the most dangerous places for transgender people (p. 340). Currently, transgender and gender-variant people have four federal protections in the workplace: Title VII of the Civil Rights Act of 1964; The Civil Service Reform Act of 1978, which prohibits discrimination by the federal government on the basis of “conduct which does not adversely affect the performance” of an applicant or employee; Executive Order 13087, which prohibits discrimination in federal employment based on sexual orientation or gender identity; and Executive Order 13672, which prohibits anti-LGBT discrimination by federal contractors (National Center for Transgender Equality, n.d.; U.S. Equal Employment Opportunity Commission, 1998; U.S. Equal Employment Opportunity Commission, 2014; U.S. Office of Personnel Management, 2015). The Equal Employment Opportunity Commission (EEOC), the agency that enforces Title VII, has stated that “employees who are receiving federal money as civilian employment, who believe they have been discriminated owing to their gender identity or sexual orientation, can now file a complaint with the Equal Employment Opportunity counselor at their place of work” (Christian, 2017, p. 3).

The federal government has been a leader in addressing the changing needs of LGBTQ employees in recent years (Elias, 2017). The federal Employment Non-Discrimination Act (ENDA), which prohibits employment discrimination on the basis of sexual orientation and gender identity, as well as protections for LGBTQ people similar to those available under existing federal anti-discrimination laws for other protected classes of workers, has a rocky history (National Center for Transgender Equality, 2014a). ENDA had been “floating around” Congress since the 1970s in some form or another (Currah, 2008). In the early 2000s, criticism arose that the focus of ENDA had become too narrow, and many LGBTQ organizations were divided on their support for and their disapproval of the bill (Goldberg, Hittson, & Hu, 2014). In 2007–2008, Representative Barney Frank—an openly gay congressman—and House Speaker Nancy Pelosi proposed a version of the bill that excluded gender identity protections from ENDA, which created backlash in trans and queer communities (Currah, 2008, p. 332). Representative Frank opposed the inclusion of gender identity in the protected classes, stating, “Transgendered people want a law that mandates a person with a penis be allowed to shower with women. They can’t get that in ENDA” (Currah, 2008, p. 333). There was an intense debate in LGBTQ communities about whether LGBQ people should seek legal protections first and then seek protections for transgender people (Goldberg et al., 2014). Supporters of a gender identity-inclusive ENDA relied on the same arguments that had been made about prohibiting LGBQ discrimination: “that they are discriminated against and that all Americans have the right to be judged on their work performance and not on non-work-related indicia” (p. 32). Unfortunately, studies outlining discrimination based on gender identity did not exist in 2007, and this affected crucial testimony heard by Congress. In 2009, the bill was reintroduced with gender identity protections added back in. The bill passed in the House, but not the Senate in 2013, but its history shows how difficult it can be to obtain anti-discrimination protections specifically for transgender and gender-variant people.

Most federal agencies do not have comprehensive transgender and gender-variant employee policies (Elias, 2018). Inconsistencies in the way transgender policy and implementation are handled from agency to agency is a pervasive problem in government (Elias, 2017). Out of approximately 235 federal agencies, only 9 have comprehensive transgender policies (Elias, 2017, 2018). Without a comprehensive set policy, agencies are left unprepared when an employee decides to transition, which can include physical changes (hormone replacement therapy, surgery) as well as social changes (changing name, pronouns) (Elias, 2018). Agencies should have explicit plans so that employees who want to transition know where to go to begin the transition process, where they can find answers about what a transition might entail for an agency employee, and what is required to change applicable records. Comprehensive transgender policies help transgender employees understand their rights and know where to go for assistance. Specifically, these policies should address plans for restroom and locker room use, flexible dress codes, and respectful use of proper names and pronouns. Laws that force transgender and gender-variant employees from using the bathroom or locker room that corresponds to their sex assigned at birth (not their gender identities) was declared in violation of Title VII and Title IX of the Civil Rights Act as well as the Violence Against Women Reauthorization Act of 2013 by the U.S. Department of Justice. In 2013, the Equal Employment Opportunity Commission found that the intentional and repeated misuse of a transgender employee’s new name and pronoun could harm the employee and thus substantiate a claim of sex-based discrimination and harassment.

A person’s gender transition often calls for deep commitment from employers, friends, family, and co-workers. Supporting employees who transition may require training of employees to make the transgender individual feel comfortable in the workplace, and some employers may not be willing to make that commitment (Atkinson, 2009). Although many employees want to be supportive of an individual in transition, others may be offended by the idea of transition (Society for Human Resource Management, 2017). However, transgender inclusion is disruptive to workplace productivity only when the initiative is poorly implemented and/or not fully supported by top management (Sheridan, 2013). According to the Society for Human Resource Management (2017), employers need to make clear statements in employee handbooks, rules manuals, orientation, and training that all employees are welcomed and supported, and should examine their current policies and practice and consider covering gender identity and gender expression in those policies.

Public accommodation laws for transgender and gender-variant people vary widely across the country. Public accommodations are establishments that provide goods and services to the general public, and can include restaurants, hotels, stores, hospitals, and restrooms (National Center for Transgender Equality, 2014b). Federal nondiscrimination laws covering public accommodations cover race, color, religion, national origin, and disability, but not sex, gender identity, or sexual orientation. As of May 2018, the majority of states (44 plus the District of Columbia) prohibit discrimination based on sex in public accommodations, and many state courts and enforcement agencies have interpreted these laws to protect transgender people. Many states (18 plus the District of Columbia) and localities also explicitly prohibit discrimination based on gender identity and sexual orientation in public accommodations. More than 200 cities and counties also explicitly prohibit gender-identity discrimination even if their state does not. Denial of access to a public restroom that is consistent with person’s gender identity may constitute discrimination based on sex and/or gender identity. Many state and local laws, or official interpretations of those laws, explicitly protect this right; however, in a few jurisdictions the laws have been interpreted not to protect this right.

Identity Markers

The gender marker (typically an “M” for “male” or “F” for “female”) on state-issued identity documents (e.g., birth certificate, driver’s license) is pertinent to the discussion of gender- and sex-based discrimination. When a transgender person transitions, they frequently seek to change their name and the gender marker on their identity documents to reflect their gender identity. Gender markers that are inconsistent with a person’s gender identity and expression (e.g., a transgender woman who has an “M” on her driver’s license) can out people as transgender and put them at risk for discrimination or even violence. However, every state has a different policy regarding changing one’s name and gender marker (Ballard, 2012; National Center for Transgender Equality, 2018; Transgender Law Center, 2017). To change the gender marker on a birth certificate, for example, requirements vary widely depending on the state. Some states require a trans person to undergo gender confirmation surgery before changing their gender marker (Transgender Law Center, 2017). Other states do not have surgical requirements, but require a court order and/or a letter from a doctor. In a handful of states, the law does not explicitly provide for gender marker correction, but it may be possible with a court order. Tennessee forbids amending the gender marker on a birth certificate. Each state also differs in how it changes the record. Some states will amend the existing birth certificate to reflect the new gender and name, whereas others will issue a new birth certificate and seal the previous certificate and birth record (Ballard, 2012, p. 787). Ballard (2012) argues that “the subtlest form of discrimination is denying someone a name and recognition—denying him or her an identity” (p. 775). Every state’s policy differs from the federal government’s policy for issuing such new documents, which has the potential to prevent trans people from traveling internationally—or doing anything else that requires uniformity of identity documents. In addition, various administrative agencies may have their own policies pertaining to name and gender marker changes, often making it difficult for trans people to obtain benefits such as Medicaid or Social Security (p. 788).

In June 2010, the U.S. Department of State implemented a policy that allows transgender people to change the gender marker on their passports and Consular Certificates of Birth Abroad, regardless of their current or future surgical status (p. 775). It does, however, still require a statement from a licensed physician stating that “the applicant had appropriate clinical treatment for gender transition to the new gender” (p. 788). Applicants also need to show proof of U.S. citizenship, fill out an application, and provide proof of identity that includes a signature and a photograph as well as a recent color photograph. Applicants who are also changing their name need an Order for Name Change with a judge’s signature. Identity markers are pressing concerns not only for individuals in the United States but also for public servants in federal, state, and local agencies. Certain states in the United States are also making important headway for nonbinary people and representation of their gender on their identification documents.

Nonbinary Gender Policy

Nonbinary individuals, those whose gender identity falls outside the male–female binary, have recently been recognized in public policy in the United States. In the current U.S. context, gender-neutral markers on state-issued identification documents (an “X” instead of an “M” or an “F”) have been enacted, adopted, or proposed in seven American jurisdictions: Oregon; Washington, D.C.; California; Massachusetts; Washington State; Vermont; and New York (District of Columbia Department of Motor Vehicles, 2017; NY A08524, 2017; Oregon Judicial Branch, 2017; Gender Recognition Act, 2017; S.D.2310, 2017; State of Oregon v. Shupe, 2016; Vermont Department of Public Safety Law Enforcement Advisory Board, 2018). There is considerable difference in U.S. jurisdictions regarding the requirements and process for changing one’s gender marker to an X, including applications, fees, letters from psychiatric and medical doctors, and court orders.

Nonbinary Gender Identity Markers

Each of the American jurisdictions that offer the X marker varies in its policy forms, requirements, and procedures. Washington, D.C., allows individuals to apply for the X marker on their driver’s licenses, and Oregon allows for the X marker on licenses as well as birth certificates. Washington State allows the X marker on birth certificates. Massachusetts; New York; California; and Washington, D.C., also have legislative policies in progress allowing for the X marker. Vermont and Maine are in the early stages of discussing creating X marker policies. These jurisdictions are on the forefront of nonbinary policy in the United States; the X gender marker is one step toward full integration of transgender and gender-variant people into society. Public and private institutions are beginning to address nonbinary policy in different contexts. Educational institutions are at the forefront of this emergent policy, particularly in the areas of gender-neutral housing and allowing students to list their chosen names and pronouns in university systems.

Nonbinary Policy in U.S. Educational Institutions

Another policy area where positive progress has been made for transgender and gender-variant people is education policy. According to the Every Student Succeeds Act (ESSA), educational institutions have a responsibility to ensure that all students have equal access to educational opportunities (Wernick, Kulick, & Chin, 2017). Schools must therefore implement policies and practices to create and sustain learning environments that address educational disparities by fostering the success of students who experience barriers to achieving educational outcomes. Transgender students experience a range of barriers to accessing and succeeding within educational institutions that are becoming increasingly well documented in the literature. In 2013, the Colorado Rights Division, the agency charged with enforcing that state’s anti-discrimination laws, became the first government body in the United States to rule that a six-year-old transgender girl who was assigned male at birth must be allowed to use the girls’ bathroom at her school (Archibald, 2016). Several states followed suit over the next few years, allowing transgender students to not only use the restroom that aligns with their gender identity, but to participate in the sex-segregated sport and use the sex-segregated locker room of their choosing.

In May 2016, the Obama administration issued guidance on the responsibilities schools have under Title IX of the Education Amendments of 1972 when it comes to their transgender students (Trumble & Kasai, 2017). Since its passage, Title IX has stated that schools receiving federal funding—including both K–12 schools and higher education institutions—cannot discriminate against their students based on sex. This guidance clarified that Title IX’s prohibition of sex-based discrimination protected transgender students in schools. The Obama administration also specifically issued a directive instructing public schools across the country to allow transgender students to use the bathroom that matches their gender identity (Weinhardt et al., 2017). However, President Trump rolled back this Title IX guidance. This essentially means that the Trump administration is informing schools that it is no longer necessary to interpret Title IX to protect transgender students in schools (Trumble & Kasai, 2017; Weinhardt et al., 2017). Title IX still remains the law of the land—as applied to discrimination, but not necessarily transgender issues—with over 15 years of case law affirming that its non-discrimination rules protect transgender students (Trumble & Kasai, 2017). More than 40% of American public-school students already attend a school that protects transgender students from discrimination.

One educational domain where there has been significant progress is college campuses. Some colleges and universities have implemented gender-neutral housing, allowing students of any genders to live together in dormitories (Erbentraut, 2015; Willoughby, Larsen, & Carroll, 2012). Sex-segregated housing can often leave transgender, gender-variant, and nonbinary students feeling as though they do not belong, and can be a stressful process. Almost one-fifth of the National Transgender Discrimination Survey respondents reported being denied gender-appropriate housing in a higher education setting, and 5% were denied on-campus housing altogether (Grant et al., 2011). Some researchers suggest that “currently existing gendered housing policies are heterosexist and promote outdated gender ideals” (Willoughby et al., 2012, p. 734). Colleges and universities offering gender-neutral housing are limited in number; Willoughby et al. (2012) found that, of the 100 large universities surveyed, only 16 indicated that they offered some form of gender-neutral housing (p. 737). Many of the schools that had some form of gender-neutral housing only offered it on a case-by case basis, and a few only offered it to transgender students (p. 742). Although this is a step in the right direction, many students seeking gender-neutral housing have struggled. Students at Northeastern University in Boston, Massachusetts, have reported that, despite its gender-neutral housing policy, housing options are inaccessible or unavailable, or the options that are available are undesirable (Lloyd, 2018). Colleges and universities with gender-neutral housing policies are predominantly located on the east and west coasts, as well as in the Midwest (Willoughby et al., 2012). The southern regions of the United States had virtually no universities with current or future plans for gender-neutral housing (p. 744). In addition to gender-neutral housing, colleges and universities are also starting to permit students to indicate their preferred names (instead of their legal names) and/or pronouns in the university system (Pérez-Peña, 2013; Scelfo, 2015). Prospective University of California students, for example, can choose among six gender identities when applying: male, female, trans male, trans female, genderqueer/gender non-conforming, and different identity (Seth, 2015). Some schools are taking gender inclusiveness a step further and covering gender-affirming medical procedures—such as hormone replacement therapy and gender-affirming surgeries—under their student healthcare plans (Pérez-Peña, 2013).

Many institutions are also changing policies and practices that exclude or marginalize transgender students by conceptualizing gender as strictly male and female, such as college forms that allow students to identify only as male or female (Beemyn, Curtis, Davis, & Tubbs, 2005). For example, the University of Maryland has introduced a slew of efforts aimed at improving the transgender experience on campus, from ensuring that the student insurance plan can pay for hormone therapy for transgender students to simply removing references to gender, such as aiming a campaign about menstrual cups at “UMD students” who menstruate, rather than women (Bauer-Wolf, 2017). Although the progress achieved on college campuses and elsewhere in the United States should be celebrated, transgender- and gender-variant-inclusive policy does not come without challenges.

Looking Ahead: Addressing Challenges and Next Steps of Transgender and Nonbinary Gender Policy

LGBTQ politics, especially transgender politics, are divisive, and progress is dependent on the demographics of the bodies creating the policies (Taylor et al., 2012). For example, Democratic control of the legislature facilitates more LGBTQ-friendly policies (p. 77). Liberal states are more likely to adopt LGBTQ rights policies than conservative ones. States with higher percentages of college graduates are more likely to adopt LGBTQ-friendly policies. Hetero- and cisnormative stereotypes and attitudes are pervasive in American society, and breaking from those stereotypes inevitably creates backlash (Levi, 2006). The knowledge that gender is a social construction has not broadly convinced courts that “every gender-based distinction or requirement in the workplace is impermissible sex discrimination” (Levi, 2006, p. 92). Much of the research done on social equity and cultural competence has been focused on the issues of race and ethnicity (Johnson, 2011, p. 170). Legislatures, organizations, agencies, and other establishments seeking to create comprehensive transgender and gender-variant policies may be unsure where to begin. Organizations like the Transgender Law Center (n.d.) and Human Rights Campaign (“Transgender Inclusion,” n.d.) have some material online to help guide the creation of anti-discrimination policies.

Policies that allow transgender and gender-variant people to use the restroom that best aligns with their gender identities (as opposed to their sex assigned at birth) are perhaps the most controversial. For example, one common rhetoric among those who oppose these policies is that sexual predators will take advantage of public accommodations laws and policies covering transgender people to attack women and children in bathrooms (Grinberg & Stewart, 2017). This is, of course, not supported by any data: anti-discrimination protections covering gender identity have been around for years, and there is no evidence they lead to attacks in public facilities.

Transgender-inclusive policies do not benefit only trans people; they are also beneficial for workplaces, educational institutions, and society at large. For example, organizations that have inadequate diversity initiatives are likely to experience problems with employee relations, employee attitudes, increased employee turnover, and lower employee retention (Johnson, 2011). Bezrukova, Jehn, and Spell (2012) define diversity training as “a distinct set of programs aimed at facilitating positive intergroup interactions, reducing prejudice and discrimination, and enhancing the skills, knowledge, and motivation of people to interact with diverse others” (p. 208).3 A recent Gallup study found that hiring a demographically diverse workforce can improve a company’s financial performance (Badal, 2014). A gender-diverse workforce allows the company to serve an increasingly diverse customer base. LGBTQ-friendly workplaces have been associated with improved health, increased job satisfaction, better relationships with co-workers and supervisors, and greater work commitment among the LGBT workers (Krejcova, 2015). Employers also benefit from lower legal costs related to discrimination lawsuits as well as lower health insurance cost through improved health of employees.

Protections for transgender and gender-variant youth in schools are likewise beneficial. Several states have passed gender-identity antidiscrimination laws that apply to educational settings (Lambda Legal, n.d.). Some specifically prohibit bullying on the basis of gender identity, and often there are other explicit protections in place for transgender students at the local level (p. 27). Even in states that lack specific protections, transgender students still have enforceable legal rights from several sources. More general state and local laws may be used to protect transgender students facing discrimination, harassment, and privacy issues, and federal statutes like the Equal Access Act and Title IX of the Civil Rights Act protect equal opportunity and free expression rights (p. 27). A school climate and culture free of bullying and harassment is the right of every student within the United States, guaranteed by the 14th Amendment (Green, 2017). In response to school administrators, educators, students, and parents asking questions about how to support transgender students, the U.S. Department of Education developed two documents: the Department of Education’s Office for Civil Rights and the U.S. Department of Justice’s Civil Rights Division jointly issued a Dear Colleague Letter about transgender students’ rights and schools’ legal obligations under Title IX of the Education Amendments of 1972; and the Department of Education’s Office of Elementary and Secondary Education compiled examples of policies and emerging practices that some schools are already using to support transgender students (Whalen & Esquith, 2016).4 Within the past five years, college campuses are leading the way on inclusive transgender and gender-variant policy. Higher education has historically been (and remains) a positive location for students’ identity development (Torres, Jones, & Renn, 2009). Research has shown the positive value of postsecondary curriculum, role models, and communities in facilitating LGBTQ identity development (Bilodeau & Renn, 2005). Given the uneven legal protections for LGBTQ students, it is imperative that institutions create and maintain policy environments that ensure full inclusion and prohibit discrimination (Renn, 2017).

In practice, the most important challenge to address is devising a transgender- and gender-variant-inclusive policy. Elias (2018) recommends that “policies specifically fashioned by agencies to deal with transgender issues should, at a minimum, cover matters that arise when [individuals] undergo [the] transition processes; restrooms and locker rooms; dress codes; and the use of proper names and pronouns.” Additionally, transgender individuals are entitled to privacy (Elias, Johnson, Ovando, & Ramirez, 2018; Transgender Law Center, n.d.). They have the right to discuss their gender identity or expression openly, or to keep that information private (Transgender Law Center, n.d.) Confidentiality when handling transitioning employee records is especially important because these records can include sensitive information, such as name change and medical records (Elias et al., 2018, p. 74). Transgender policies should support individuals’ rights to express their gender identity while also respecting their right to keep their transgender status a private matter if they so choose. Policies should specifically address avenues of recourse if a transgender individual experiences harassment or discrimination. Elias et al. (2018) recommend that organizations include resources and proactive programs to support and protect transgender and gender-variant individuals (p. 71). The authors also found that a definition section included in an organization’s transgender policy was crucial to the tone and inclusiveness of that policy (p. 73). A definition section defines key terms (such as “transgender” and “transition”) and positively contributes to organizations’ and individuals’ understanding of the policy and the transgender experience. Policies should use inclusive language, such as “they” instead of “he or she,” and “people” or “individuals” instead of “men and women.” A transition plan is a crucial part of the policy. An organization’s transition plan should be flexible, with the priority throughout the transition plan being guided by the transitioning employee’s preferences (p. 73). Lastly, a plan can only be inclusive if the organization is supportive of the transgender individual and if a proper method of deliberation and communication is conducted throughout the creation of the creation of the policy (p. 74). Transgender and nonbinary gender policy will grow and evolve with the help of supportive leadership and members of public organizations who value inclusive policy and practice.

Although policy and public opinion is evolving favorably for transgender people, the Trump administration has made it fairly clear that transgender rights are not part of their agenda. It is unlikely that there will be major rollbacks of the gains transgender people have made in the past couple of decades, as many of those gains are based on federal civil rights statutes and federal court precedent, which cannot be quickly undone (Minter, 2018). As has been stated in this article, many states have enacted laws and policies that protect transgender people, and social acceptance is becoming widespread and continues to grow. However, President Trump has already appointed one conservative Supreme Court justice and is in the process of nominating another. Justice Neil Gorsuch has a history of ruling against transgender and LGBTQ people, and with Brett Kavanaugh confirmed to the Court despite a contentious confirmation hearing, he tilts an already conservative Court to the far right (Minter, 2018; National Center for Transgender Equality, 2017). This is particularly important because there are many cases pertaining to LGBT issues that could come before the Supreme Court soon. The Court may hear cases on the constitutionality of discriminatory new state laws that allow discrimination against LGBT people on the grounds of “religious freedom” (Minter, 2018). The Court may also hear cases affecting transgender students. Right now, the lower federal courts have overwhelmingly ruled that federal education law protects trans students and their access to education. A contrary decision by the U.S. Supreme Court would be devastating for trans students. The power the Supreme Court and the Trump administration hold over transgender rights in the United States makes comprehensive state and organizational antidiscrimination policies all the more important.

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Notes:

(1.) Gender variant can take on different meanings in different contexts. Here, it means people whose gender identity does not align with their sex assigned at birth.

(2.) This is not the only Trump era change regarding the transgender population. The Trump administration approved a policy that bars transgender people who have undergone transition from serving in the military (Cooper & Gibbons-Neff, 2018); filed a court brief that said Title VII of the Civil Rights Act of 1964 was not intended to provide protections for LGBTQ workers (Wiessner, 2018); and rescinded protections for transgender students in public schools that had allowed them to use bathrooms corresponding with their gender identity (Peters, Becker, & Davis, 2017).

(3.) It is important to acknowledge that there is a scholarly debate surrounding the efficacy of diversity training (Dobbin & Kalev, 2016). Scholars have expressed concern that diversity training may have no effect or perhaps even a negative effect on trainees.

(4.) This has since been revoked by the Trump administration and Education Secretary Betsy DeVos.