Silver Taube: Misgendering a transgender person in the workplace is stigmatizing and unlawful

Despite the landmark 2019 Supreme Court ruling in Bostock v. Clayton County, Georgia that holds that anti-gay and transgender bias violates Title VII, the federal anti-discrimination law, transgender Americans continue to experience discrimination and harassment at work.

According to a 2023 KFF and Washington Post survey, transgender adults are more likely to report being asked unnecessary or invasive questions at work (61%), being harassed or feeling unsafe in a restroom or locker room (50%) and being fired or denied a job or promotion (29%).

Another 2023 survey by Redfield & Wilton Strategies found 17% of respondents would intentionally misgender or deadname — assign a gender with which a person does not identify — while 28% said it depends on the person and 17% said they do not know.

The Equal Employment Opportunity Commission’s latest guidance states that intentional and repeated misgendering at work is unlawful gender identity harassment, as is denial of access to a bathroom consistent with the individual’s gender identity.

In Copeland v. Georgia Department of Corrections, Tyler Copeland who worked for the Georgia Department of Corrections as a sergeant at Rogers State Prison was repeatedly misgendered when he came out at work as transgender. Human resources required him to provide a birth certificate reflecting his gender change, questioned whether he had had surgery or planned to have it, laughed about the situation and advised him not to use the men’s restroom.

Copeland testified that his supervisors and subordinates publicly misgendered him — by calling him “ma’am” over the prison’s radio for the entire staff to hear — three to four times a day for at least a year. He met with HR, his shift supervisor and the warden, but the behavior continued. His lieutenant repeatedly called him “baby girl,” and another supervisor repeatedly misgendered Copeland on the radio while employees and his supervisor laughed. A nurse on the medical staff told Copeland she was not going to call him sir because that wasn’t who he was.

In its March 28 opinion, the court stated Title VII does not countenance such behavior.

Under California law, intentional misgendering is also unlawful gender identity harassment. In a fact sheet on the legal rights of transgender employees, the California Civil Rights Department (CRD) states that, under the Fair Employment and Housing Act, employees have the right to use and be addressed by the name and pronouns that correspond with their gender identity or gender expression.

The CRD states an employee does not need to have legally changed their name or birth certificate, nor have undergone any type of gender transition, such as surgery, and to use a name and/or pronouns that correspond with their gender identity or gender expression. Transgender employees also have a right to use a restroom or locker room that corresponds to the employee’s gender identity, regardless of the employee’s sex assigned at birth.

Misgendering causes transgender employees stress, anxiety and feelings of stigmatization. Employers must foster a culture of respect and inclusion so transgender employees feel valued at work, establish clear policies to ensure employees are not misgendered or harassed and take effective remedial action if the policies are violated.

San José Spotlight columnist Ruth Silver Taube is supervising attorney of the Workers’ Rights Clinic at the Katharine & George Alexander Community Law Center, supervising attorney of the Santa Clara County’s Office of Labor Standards Enforcement Legal Advice Line and a member of Santa Clara County’s Fair Workplace Collaborative. Her columns appear every second Thursday of the month. Contact her at [email protected].