Tuesday, May 9, 2006

Issue: Employer Records of Gender Identity

When an employee transitions on the job, what should the organization do about its records showing a different gender?

The Human Rights Campaign's Trangender Issues Manual suggests the following: "Upon an employee's request, change the employee's name and sex in all personnel and administrative records, including internal and external e-mail and business cards. While this stance is admirably accommodating, it may not be possible to change "all personnel and administrative records." If the employee has been with the organization for a long time, there are years of previous records, which would be burdensome to change. A less onerous suggestion is to change the company database to reflect the new name and gender prospectively for the future only. This could, however, result in a discrepancy in the future, causing inquiry and some distress to a transgender employee. Some thought should be given by the organization to which records in its particular system are most likely to pop up later on.

Changing of name is a fairly routine matter because organizations are used to changing names when women get married or divorced. I note, however, that organizations usually request a court order for the purposes of changing a name. This causes problems for those US states that will not easily give a court order to change a name from one which is stereotypically male to one that is stereotypically female, or vice versa. The workaround for this is the general recognition in the law that a court order is not required in order to use a different name. Rather, the court order simply acknowledges an individual's use of a different name. With concerns about security on the rise, however, many organizations are ignoring this common-law rule in favor of requiring a court order. Even more problematic, however, is the fact that only one US state (Texas, interestingly enough) will give a court order recognizing a change of sex, albeit for limited purposes.

A change of gender is much more problematic administratively than a change of name. The gender change on the company's database will cause a discrepancy when it does not match the database gender marker on other systems. For example, unless and until the employee changes the gender identity marker on the Social Security account, insurance plans, pension plans, security classification, professional licenses, etc., the discrepancies may trigger an inquiry. In addition, there is no universal document that will satisfy all organizations to change the gender marker.

For example, Social Security Administration rules recently changed to require sex reassignment surgery for change of gender marker on the SSA account. This is a problem for some transgender employees, because the medical standards of care call for living in the opposite gender for at least a year prior to receiving permission for sex reassignment surgery. There are stories out there about SSA contacting employers about the gender mismatch, causing some distress for transgender employees. However, when I queried SSA about this, I received the following reply:

"SSA may inform employers of discrepancies through a No-Match letter, Basic Pilot (Employment Eligibility Verification) or Social Security Number Verification Service (SSNVS)....SSA only matches the name and SSN reported against its records (not gender). The Basic Pilot assists participating employers in confirming employment eligibility of newly-hired employees. Employers participating in the Basic Pilot electronically match the newly hired employee's data against SSA and Department of Homeland Security electronic records such as SSN, name, date of birth, and citizenship/work authorized status. Basic Pilot does not match the gender."
I'm not sure who to believe at this point.

One legal department raised the concern that changing the gender marker before SSA approval could cause a loss or interruption of benefit accrual to the individual's social security account. I've queried SSA about this, too, but it looks like it will be some time before they can answer the question. I spoke to Christopher Daley, an attorney and director of the Transgender Law Center (TLC), which provides legal services to hundreds of transgender people and their families each year. TLC has worked with many transgender people whose birth-identified gender marker on their SSA account conflicts with the corrected gender marker on their employers' records. To his knowledge, this particular inconsistency has never resulted in loss of benefits for any of the Center's clients.