While currently there is no federal statute regarding employment that contains an explicit “gender identity” provision, transgender employees have been increasingly successful in relying on Title VII’s prohibition of sex discrimination to combat anti-transgender discrimination (for more about that, see “How are transgender employees protected by federal sex discrimination laws?”). Additionally, President Obama’s Executive Order 13672 in July 2014 explicitly forbids both federal agencies and private firms receiving federal contracts from discrimination based on “gender identity.”

At the state level, 20 states and the District of Columbia, Guam and Puerto Rico expressly ban discrimination based on gender identity in public and private workplaces, as do at least 225 cities and counties across the United States. This is in addition to numerous protections specifically for municipal employees.

Also, a growing number of private companies have put into place antidiscrimination policies that cover bias against transgender people.
Finally, while the federal Americans with Disabilities Act (ADA) has language that explicitly excludes transgender people from its protections, some advocates have been successful in bringing disability claims on behalf of transgender people based on state law, especially where state disability law mirrors the ADA but does not have the ADA’s exclusion of protection for transgender employees. And a federal court in Pennsylvania ruled in May 2017 that the ADA exclusion should not apply to an individual who has gender dysphoria that has led to clinically significant stress and other impairments.

All employees should be able to use the restroom that corresponds to their gender identity. However, employers and coworkers don’t always understand and welcome that idea. Transgender people are sometimes forced to endure extreme discomfort or inconvenience just to keep a job—traveling some distance to use a gas station restroom, for instance, or simply “holding it.” While some employers have required transgender employees to use “single occupancy” restrooms, the better course is to provide that option to any employee who objects to a transgender employee’s bathroom use, since it addresses the objecting employee’s concern without imposing burdens on other employees.

The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA), however, prohibits employers from placing “unreasonable restrictions” on employees’ access to restrooms. For more information about restroom access rights, click here.

Many employers continue to select health insurance plans that have explicit exclusions for transition-related health care. However, a fast-growing number of gatekeepers to health care are lifting their outmoded and discriminatory exclusions of transition-related care, most notably Medicare, but also many insurance companies— often because employers have requested the coverage or because state law requires that it be offered. The U.S. Office of Personnel Management, which is in charge of benefits for almost all federal employees, in 2015 removed its requirement that insurance companies exclude transition-related healthcare coverage. In addition, a growing number of private-sector employers—including major firms such as Nike, Microsoft and Google—are leading the way in this area by offering trans-inclusive health care coverage as part of diversity initiatives. For more about access to transition-related health care, click here.