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This is not legal advice, which can only be given by an attorney admitted to practice law in your jurisdiction after hearing all of the facts and circumstances in a particular case.

Monday, October 23, 2006

Co-worker's refusal to acknowledge new gender

From the UK comes the story of a police officer who is facing discipline because he insists on continuing to address a transsexual police officer as a man.

Interestingly, the Cleveland Police themselves refused the transsexual officer's request to dress as a female officer. Police chiefs let her grow her hair and change her name to Melanie-Sarah, but refused to permit a female uniform. When off-duty, the officer wears women’s clothing and takes female hormones in preparation for sex reassignment surgery next year. The police officer facing discipline has argued that the actions of the Cleveland Police, in not allowing the officer in transition to dress as a female officer, means that the officer is not yet acknowleged as a female, and so he should not be forced to address her as a "WPC" (woman police constable).

What happens at most organizations if a co-worker calls a transgender person by their old name and pronoun?

This would not seem, in itself, to constitute "harassment" under most standard workplace policies. In fact, it is likely that there will be many instances of this as people adjust. In my experience, most people find it difficult to "forget" the employee in transition's original gender, and when referencing the name or pronoun in the hurly-burly of discussion, tend to bring up the old one at first. Some people are better at remembering than others. It is also natural that an employee in transition feels, after a while, as if these "forgettings" are a dig of some sort, particularly if they tend to issue from certain people.

Should the employee in transition correct such mistakes by explaining each time to the mistaken employees that they have changed their name and gender? How many such incidents constitute "harassment"? At what point should someone be called into a manager's office to address these incidents?

In developing policy, I suggest that these issues be addressed up front, rather than on a case-by-case basis that gives room for recalcitrant employees to indulge their lack of sensitivity. The employee in transition should also be told not to be too sensitive. The policy should direct them to respond appropriately to co-workers who make mistakes in references to name or pronoun of the new gender, or who ask inappropriate questions or make inappropriate comments, particularly during the initial phases of the gender transition plan. Managers should be directed to model appropriate norms of conduct by treating the employee with respect, using correct references to name or pronoun of the new gender, refraining from asking inappropriate questions or making inappropriate comments, and respecting employee confidentiality. Co-workers should be directed to treat the employee in transition with respect, using correct references to name or pronoun of the new gender, refraining from asking inappropriate questions or making inappropriate comments, and respecting employee confidentiality.

They should all be told that, particularly at the beginning of gender transition, it is normal for co-workers to make some mistakes regarding these matters. They should be advised not to take offense at respectful corrections offered by the employee in transition, and that requests for guidance may be made to the GTL (gender transition leader). These instructions should also be noted in the draft transition plan, signed by the manager and the employee.

In addressing a particular situation in which co-workers have a religious or moral objection to gender transition, these co-workers should be told that the company is not asking employees to change their religious or moral opinions. Employees are entitled to their private opinions regarding these guidelines. The Company’s policy only prohibits discrimination and harassment, that is, adverse employment actions or hostile working environments.

Because most people have not been exposed to gender transition, it is likely that co-workers will make mistakes, such as referring to the employee in gender transition by the wrong name or pronoun, or asking inappropriate questions. Employees in transition should gently correct a co-worker who makes a mistake. It is assumed that mistakes will be less frequent after a reasonable period of time. However, continually addressing the employee by his/her former name or gender identity after a reasonable period of time may constitute a hostile working environment. If brought to the company’s attention, the matter will have to be addressed to ensure that the work environment is not hostile to the employee in transition. It is best if there is a policy on the subject so that all concerned understand how to handle mistakes in the beginning.

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