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Gender/Gender Identity in the Workplace
This guidance is intended to help employers understand Oregon’s legal protections based on gender identity in employment. It is also intended to provide some practical information to help employers understand and navigate this aspect of the modern workplace.

Thoughtful consideration of gender issues is rooted in providing safe, inclusive work environments and public spaces where all people are treated equally and fairly, irrespective of where they may be on the gender, sexual orientation and sexuality spectra.

Oregon civil rights laws protect individuals from discrimination based on sex and sexual orientation, including gender identity. Federal civil rights laws also protect individuals from discrimination based on sex. The current enforcement position of the U.S. Department of Justice is that Congress did not intend to provide protection based on gender identity. The federal Equal Employment Opportunity Commission, however, currently considers discrimination against an individual because of gender identity, including transgender status, or because of sexual orientation, to be discrimination because of sex in violation of federal law. 

Our discussion of gender issues is aided by looking at some of the terms used in understanding gender concepts. Sexual orientation refers to a person’s physical or emotional attraction to people of the same and/or other genders. It is about whom you love, whether described as heterosexual (straight), gay, lesbian or bisexual. Gender identity or simply gender is a person’s deeply-felt sense of being male, female or non-binary, regardless of the sex they were assigned at birth. It is about who you are. Gender expression involves a person’s characteristics and behaviors, such as appearance, dress, mannerisms, speech patterns and social interactions, often perceived as masculine, feminine or androgynous. A person who is transgender, or trans, is a person whose gender identity is different from their sex assigned at birth. Or a person may be gender fluid, when gender identity or expression shifts over time. A transition is the process of changing one’s gender from the sex assigned at birth to conform to one’s gender identity. It may involve “coming out” to one’s family, friends and co-workers or a change of name and/or gender marker on legal documents. It may also involve accessing medical treatment, such as hormone therapy or surgery, but such interventions are not part of every transition.

Q. What do all of those letters mean and why do they keep changing?

A. It may be confusing and challenging to keep up with this terminology as it changes over time. The most commonly used letters in that alphabet soup are: LGBTQIA2S, and those letters usually, with occasional variation, stand for: lesbian, gay, bisexual, transgender (not “transgendered” since this is who people are, not something that has happened to them), queer (or questioning), intersex, asexual (or androgynous), and two-spirit. Intersex is the term that describes a person born with sex characteristics that do not fit typical binary notions of male or female bodies. These characteristics may be genetic, genital, sexual, reproductive or hormonal configurations. Asexual is a term that refers to an individual’s lack of interest in sex or unwillingness to be identified as a sexual being. Two-spirit is a pan-Indian term used by Native and Indigenous North Americans to indicate that they embody both a masculine and a feminine spirit, or to describe people in their communities who fulfill a traditional third-gender.

The acronym keeps growing and changing because the variations in human sexuality and gender identity are infinite, and our language is continually adapting to be able to accurately describe people’s experiences. The reality is that many of us do not fit neatly and comfortably into one of two binary sexes or the gender identities and gender roles that our culture has historically dictated.  

Q. You include the term “queer” in the acronym. Isn’t that a derogatory term for a gay person?

A. It was. And it could still be depending on what is in the mind and heart of the person using it. However, the term has been reclaimed by many in the community of people who do not conform to traditional notions of gender and sexuality. It has become the label of choice for those who seek a more inclusive category. It has also been used by many who gravitate toward labels that are not represented in the acronym, such as pansexual and genderqueer. 

Q. I am cisgender and heterosexual. Do the laws that protect LGBTQIA folks from discrimination protect me, too? 

A. Yes. Cisgender is a term used to describe a person whose gender identity corresponds with the sex they were assigned at birth. If you worked at a place where everyone else was gay and trans and they discriminated against you or harassed you based on your gender identity or sexual orientation, that would be unlawful. We are all members of many protected classifications and the laws do not just protect those who are members of a subcategory that has historically been subjected to discrimination. 

Q. The issue that seems to cause the most concern in our workplace is which restrooms people use. May I ask my transgender employees to use the gender neutral restroom we have installed?

A. No, you may not. The antidiscrimination laws allow people to use the restroom that corresponds with their gender identity. While this may cause concern for those who do not agree with or understand people’s identities and expressions, it is not only the law, but it is also the fairest and most practical approach. 

If you have the ability to offer a gender neutral restroom in your workplace, these often feel safest for trans folks; however, they cannot be compelled to use the gender neutral restroom. In the end, the reality is that people use the restroom because they have to take care of personal business. We typically cannot know by looking at someone what their gender identity, gender assigned at birth, gender expression and sexual orientation are. It is best to allow people to use the facilities where they feel most comfortable. Frankly, it is none of our business… and it is the law.

Q. It is challenging for me to know which pronouns to use. How do I know? I know a trans person who prefers plural pronouns, but that seems grammatically incorrect to me. 

A. It may be a challenge and take some time to get into the habit of using a new set of pronouns correctly. But it is important to try and get it right. Using pronouns incorrectly or refusing to use a trans person’s new name on purpose may even be evidence of discrimination or harassment. We know which pronouns to use by asking. It is generally acceptable to ask. When in doubt, it is generally preferred to use neutral pronouns or simply use the person’s name. In fact, people are now often putting their pronouns (he, him and his or she, her and hers, or they, them and their) into their email signature blocks, whether they are transgender or cisgender. As to the grammar issue, language is an evolving thing. The increasing use of pronouns like “they” and “them”’ to refer to a singular person is a case in point. It is also courteous and a sign that you are being inclusive and respectful of a person’s identity. Using a person’s desired name and pronouns, and being respectful and inclusive are great steps toward promoting healthy and supportive work environments and staying in compliance with the law.

Q. Rumor has it one of our employees is poised to transition. That’s obviously a very personal decision, what’s my role as an employer?  

A. Employees have a right to openly discuss their gender identity and expression or to keep these things private. Employers should be willing to meet with transitioning employees to discuss working together on a transition plan, if the employees desire the involvement of management in the process. Secure approval by the transitioning employee before making any disclosures or announcements to other employees. If announcements are made, it may be wise to point out the requirement to continue treating the transitioning employee with dignity and respect. Reference to an anti-harassment or respectful workplace policy will put employees on notice that the transgender employee is entitled to protection. A handbook provision will let employees know that transition assistance is available, including updates to employee directories and new ID badges or name placards. Typically, questions about medical issues and genitalia are considered intrusive and should not be asked. Expressions of support from management for the transitioning employee, if welcome, can be quite powerful and set the tone for how other employees react to the change.

Created December, 2018

DISCLAIMER 
Nothing on this website is intended as legal advice.  Any responses to specific questions are based on the facts as we understand them, and not intended to apply to any other situations.  This communication is not an agency order.  If you need legal advice, please consult an attorney.  We attempt to update the information on this website as soon as practicable following changes or developments in the laws and rules affecting Oregon employers, but we make no warranties or representations, express or implied, about whether the information provided is current.  We urge you to check the applicable statutes and administrative rules yourself and to consult with legal counsel prior to taking action that may invoke employee rights or employer responsibilities or omitting to act when required by law to act.
 
TECHNICAL ASSISTANCE FOR EMPLOYERS
800 NE OREGON STREET, STE 1045
PORTLAND, OR  97232
971-673-0824
 
 
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