Many law firms have put a lot of effort into creating and cultivating a culture that attracts and retains diverse candidates, including attorneys of the lesbian, gay, bisexual, and transgender community. But what happens when a member of the law firm announces their intention to transition their gender? Here are some guidelines for accommodating an attorney who undergoes a gender transition:
Review Your Policies
Perhaps the most fundamental step a law firm or legal organization can take when an attorney announces a planned gender transition (if not before) is to review its equal opportunity and other policies. If the firm includes “gender identity and expression” in its equal employment opportunity and similar policies, then it should make sure they are accessible, so that all employees of the firm understand discrimination against transgender individuals is prohibited. If the firm does not include “gender identity and expression” in its EEO and related policies, it should consider whether to add it. Many jurisdictions protect “gender identity and expression” under state or local law, and since 2012, the U.S. Equal Employment Opportunity Commission has opined that “gender identity and expression” and transgender employees are covered under Title VII. Regardless of whether the firm expressly includes “gender identity and expression” in its EEO and related policies, at a minimum the firm should be prepared to ensure that employees are not discriminated against or subjected to harassment based on their gender identity or expression, or their decision to undergo a gender transition.
Prepare Your Managers and Employees
Whether an attorney informs their mentor, direct-line manager, or member of the human resources team of their intention to transition, the firm should be prepared that an attorney may undergo a gender transition in the future. Having a plan—in the form of gender transition guidelines—can help any employer be prepared when and if a gender transition occurs. Gender transition guidelines can provide members of the firm with a plan, outline roles and responsibilities, and also map out how the organization will respond in the event an employee begins the gender transition process.
Training also is key to being prepared. Training on issues relating to gender identity and expression can be incorporated into the firm’s sexual harassment training, manager training, or other standard training delivered to managers, firm leaders, and members of the human resources team. Training on the firm’s gender transition guidelines—even in conjunction with other required training—also can be useful in preparing members of the organization on how (and how not) to respond when an attorney announces the intention to transition. Regardless of what type of training the firm decides to undertake, teaching managers, leaders, and members of the human resources team how to have sensitive and appropriate conversations can go a long way to ensuring a successful gender transition.
Everyone Transitions Differently
When an attorney announces the decision to begin the transition process, their mentor, immediate supervisor, or human resources representative should speak with the attorney about their intentions, needs, and concerns. The transitioning attorney should be prepared to help educate the mentor, manager, human resources representative, and others so the firm understands clearly what their needs may be. Transitioning is a very personal process, and no solution fits every employee. The key to a successful gender transition is flexibility, and a willingness by the transitioning attorney and the members of the firm to work together.
Restroom and Facilities Access
Access issues related to restrooms and other sex-segregated facilities should be handled with sensitivity not only to the firm’s obligation to provide the attorney who is transitioning with the same level of facilities access available to all other employees, but also to the responses of co-workers and the comfort of the attorney. The attorney who is transitioning should be permitted to use the facilities that correspond to their gender identity. Once an attorney has begun presenting full-time in the gender to which they have transitioned, they should not be required to use the restroom of their designated sex at birth. Where available, the firm may consider offering the use of single-occupancy or unisex facilities to any employee who desires to use them, but no one should be required to use such facilities.
Name, Gender, and System Changes
Honor requests by an attorney to be referred to by a particular name and gender. The attorney’s new name should be used on all documentation, such as e-mail, phone directory, business cards, access badge, name plate, etc. (except where records must match the legal name, such as on payroll and insurance documents). All photographs on display in the workplace or on the firm’s website should be replaced with new ones portraying the individual in the gender to which they have transitioned.
Employee records and work-related documents should be retained under the transitioning attorney’s legal name and gender marker (as reflected on identification documents verified at the start of employment) until the attorney makes a legal change. Upon notification of a legal name and gender marker change by the transitioning attorney, human resources should change the attorney’s name and gender marker in all personnel and administrative records. Requirements to be followed to change bar records vary by state, and may require a legal name change to be effected.
Culture Can Be Key
As Peter Drucker once said, “Culture eats strategy for breakfast.” Such is true in this case, as how successfully a law firm or legal employer accommodates a gender transition for one of its attorneys often comes down to the culture and tone set by the organization. In particular, having the leaders of the firm set the appropriate tone from the top can create a culture of collegiality and acceptance, where individuals feel respected and welcomed. The lack of an environment premised upon respect, on the other hand, often can lead to the opposite result.
About the Author
Denise M. Visconti is the managing shareholder of the San Diego office of Littler Mendelson, P.C. She can be reached at 619.515.1822 or DVisconti@Littler.com.