Unfortunately, for transgender, genderqueer, non-binary, and other gender non-conforming employees, discrimination at work is all too common. A 2024 report from the Williams Institute at UCLA indicated that 82% of transgender employees have experienced discrimination or harassment at work at some point in their lives. And 47% of transgender employees have faced discrimination in the last year.[1]
Despite the Trump administration’s attacks on LGBTQ+ rights in the workplace, transgender and non-binary employees continue to have broad protections under federal law. Additionally, a patchwork of state and local legislation may give transgender and non-binary workers more comprehensive rights at work, depending on where they live.
It is illegal under federal law to discriminate against employees based on their gender identity. Title VII of the Civil Rights Act of 1964 makes it unlawful for an employer “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” In June 2020, the Supreme Court ruled in Bostock v. Clayton County that discrimination based on sexual orientation and transgender status constitute discrimination because of sex under Title VII. Title VII applies to employment agencies, labor organizations, and public and private employers that have 15 or more employees.
What does this mean?
- Even if your state or locality does not have laws explicitly prohibiting gender identity discrimination, you cannot be fired, demoted, or refused a job or promotion because you are transgender or non-binary.
- You have the right to choose to come out or not. Your employer cannot fire or retaliate against you for coming out at work, and your employer cannot disclose your transgender status without your consent.
- You have the right to use restrooms consistent with your gender identity at work. Your employer cannot deny you access to restrooms based on your gender identity, or demand you use a different restroom from other employees.
- You have the right to be treated with respect at work. Harassment based on transgender status might consist of derogatory comments or “jokes” about transgender people, intentional misgendering or deadnaming, or invasive questioning about your gender identity or transition.
If a court finds you have been discriminated against or retaliated against in violation of Title VII, you may be entitled to remedies including:
- Reinstatement, compelled hiring, or compelled promotion
- Back pay
- Front pay
- Retroactive seniority and benefits
- Compensatory and punitive damages (punitive damages not available against government employers)
- Attorneys’ fees
Many states and localities also have laws that prohibit discrimination against workers based on their gender identity and/or expression. As of November 2024, 23 states and DC prohibit discrimination based on sexual orientation and gender identity. In nine more states (Alaska, Arizona, Texas, Nebraska, Kansas, North Dakota, Kentucky, Florida, and Pennsylvania) enforcement authorities are accepting complaints on the basis of sexual orientation and gender identity because the state has adopted the Bostock rationale into state law.[2]
In the District of Columbia, the District of Columbia Human Rights Act (DCHRA), makes it unlawful to discriminate based on actual or perceived sexual orientation or gender identity. While federal law only applies to employers with 15 or more employees, the DCHRA applies to all employers. Additionally, the DCHRA protects independent contractors from discrimination.
Under the DCHRA, an employee can file a complaint if an actual discriminatory action occurred in DC, even if the employee does not live and work there.
If you work for a private employer and your employer has discriminated against you because of your sexual orientation or because you are transgender, you have one year to file a charge of discrimination with either the D.C. Office of Human Rights or in D.C. Superior Court.
Maryland law also prohibits certain employers from discriminating on the basis of gender identity. In Maryland, an employer may not “fail or refuse to hire, discharge, or otherwise discriminate against any individual with respect to the individual’s compensation, terms, conditions, or privileges of employment” because of that individual’s gender identity or sexual orientation. [3] Harassment by a coworker may also violate the law if an employer is aware of and fails to address the harassment.
Virginia law similarly provides protection against workplace discrimination based on one’s gender identity. The Virginia Human Rights Act, as amended in 2020, covers transgender status. In cases of unlawful termination, the law applies to employers with more than five employees; in cases of other types of discriminatory employment actions, the law covers employers with 15 or more employees.
In New York, the New York State Human Rights Law (“NYSHRL”) was amended in 2019 through Gender Expression Non-Discrimination Act (GENDA) to explicitly add gender identity or expression as a protected category. The law defines “gender identity or expression” as “a person’s actual or perceived gender-related identity, appearance, behavior, expression, or other gender-related characteristic regardless of the sex assigned to that person at birth, including, but not limited to, the status of being transgender”. N.Y. Exec. Law § 292(35).
The NYSHRL is particularly expansive in that it covers all employers – an employer with just one employee is covered. Employers also cannot harass any individual who opposes a practice unlawful under the NYSHRL.
In California, the Fair Employment and Housing Act (“FEHA”) also prohibits employers from discriminating against their employees based on sex, gender, gender identity or gender expression. It defines gender expression as “a person’s gender-related appearance and behavior whether or not stereotypically associated with the person’s assigned sex at birth.” Cal. Gov’t Code § 12926(r)(2).
If you have or are currently experiencing harassment based on your gender identity, the lawyers at Katz Banks Kumin can help you to find a fair and just resolution with your employer. Contact us confidentially today.
[1] https://williamsinstitute.law.ucla.edu/publications/transgender-workplace-discrim/
[2] https://www.hrc.org/resources/state-maps
[3] Md. Code, State Gov’t § 20-606