Gender Identity & Gender Expression

Individuals whose gender identity, expression, or behavior is different from those typically associated with their assigned sex at birth are often targets of discrimination and harassment in the workplace. Presently, 21 states and the District of Columbia explicitly prohibit discrimination based on gender identity and gender expression. While these types of discrimination are not explicitly prohibited under federal law at this time, the United States Equal Employment Commission and many federal courts have recognized that transgender and gender non-conforming people are protected from sex discrimination under federal law. The attorneys at Outten & Golden are at the forefront of pushing for greater protections under existing statutes and the passage of federal and local laws that would explicitly cover individuals who suffer discrimination based on gender identity, gender expression and transgender identity.

The phrase “gender identity” refers to a person’s self-identification as a man, a woman, or a non-binary person, as opposed to a person’s anatomical sex assigned at birth. Usually, a person’s gender identity matches the person’s anatomical sex. However, for a person who is transgender, gender identity does not align with anatomical sex, or the gender the person was assigned at birth.

The phrase “gender expression” refers to how society perceives a person’s gender identity as male or female based on cues like clothing, haircut, voice, and name. Transgender people generally want their gender expression to match their gender identity, and not necessarily the gender they were assigned at birth.

The term “transgender” is a generalized term used to describe a person who, in one or more ways, does not conform to society’s perception or stereotypes of gender identity and/or gender expression. This term is generally understood to be an umbrella term including all gender non-conforming people, such as transsexual people, nonbinary people, women seen as masculine and men seen as feminine. Intersex people, who are born with a combination of 'male' and 'female' biological characteristics, may or may not consider themselves transgender, but are also protected from discrimination.

Gender Discrimination and Harassment in the Workplace

In the workplace, gender identity, gender expression or transgender identity discrimination occurs when an employer discriminates against an employee because of their gender identity, the way the employee expresses his or her gender or because an employee is transgender. Such discrimination can manifest itself, for example, as:

• adverse treatment of an employee after the employer finds out about the employee's gender identity or planned transition;
• denying an employee access to workplace restroom facilities available to other employees;
• requiring a transgender employee to use a restroom not consistent with the employee's gender identity or expression;
• or any other negative employment action taken because of an employee’s gender identity, gender expression or transgender identity.

Protections Under Title VII

Harassment on the basis of gender identity is prohibited as a form of sex discrimination under Title VII. Harassment is offensive conduct that is so severe and pervasive that it creates a hostile workplace or results in an adverse employment decision, such as demotion, firing, or reassignment to a less prestigious position.

State Laws

Moreover, the state laws prohibiting this type of discrimination, generally, also prohibit employers from firing, demoting, harassing, or otherwise retaliating against an employee who complains about such discrimination. Complaining about gender identity, gender expression or transgender identity discrimination could mean, for instance, speaking to a superior, filing a complaint with Human Resources, filing a charge with the Equal Employment Opportunity Commission, participating in a related legal proceeding, or any other type of conduct opposing discrimination. Even if the employee is wrong and the conduct is not illegal, the employee may be protected from retaliation if the complaint is based on a good faith belief that discrimination occurred. A retaliation claim is separate from a gender identity, gender expression or transgender identity discrimination claim. In other words, an employee need not show that he or she was discriminated against in order to prove retaliation.

Contact Gender Identity | Gender Expression Discrimination Lawyers

The attorneys at Outten & Golden have extensive experience representing individuals who have been discriminated against or harassed because of their gender identity, gender expression or transgender identity, as well as from illegal retaliation. If you believe you have been subjected to discrimination because of your gender identity, gender expression or transgender identity, or retaliation, please contact the firm through the ”Contact Us" form or by calling us in the New York, San Francisco or Washington, DC office (see bottom of page for phone numbers) to begin the Outten & Golden intake process.