Mass LGBTQ Bar Encourages Legal Profession to Lead in Promoting Transgender Rights in the Workplace

Wednesday, February 22, 2012

In anticipation of the Transgender Equal Rights Bill going into effect on July 1, 2012, the Massachusetts LGBTQ Bar Association (“Mass. LGBTQ Bar”) is encouraging legal employers to take the lead amongst Massachusetts employers to comply with the new law and to take steps to make their own work environments more respectful, inclusive, and welcoming to current and potential transgender employees. The bill, signed into law by Governor Deval Patrick in November 2011, prohibits discrimination on the basis of gender identity in employment, in addition to in education, housing, credit and lending.

Catherine Reuben, a partner at Hirsch Roberts Weinstein LLP whose practice focuses on employment law and who serves on the Mass. LGBTQ Bar’s Committee on Transgender Inclusion, encourages law firm management to be pro-active in engaging both their employees and their clients about how the new law affects their existing employment policies and practices.“

There are a number of steps that employers can take now to make their workplaces more welcoming to transgender individuals,” says Reuben, who trains and counsels employers about compliance with the new law and trains lawyers on representing transgender clients. “Legal employers are in a unique position to be at the forefront of providing equal employment opportunities for transgender employees and to lead their clients by example.”

Promoting a Transgender-Friendly Workplace

The Mass. LGBTQ Bar offers the following best practice suggestions to legal employers to make their workplaces more respectful, inclusive, and welcoming to transgender individuals (both employees and clients), including:

• DIGNITY AND RESPECT:  Treat all persons – including those who are transgender and gender non-conforming – with dignity and respect. Do not ask transgender employees or clients about their identity or gender transition unless there is a legitimate reason for doing so. Treat an employee’s gender transition like any other significant, and highly personal, life event, such as pregnancy.

• VALUE TALENT AND DIVERSITY: Recruit, hire, retain, and promote transgender employees.

• NON-DISCRIMINATION POLICIES: Include “gender identity/expression” in the list of protected classes contained in the non-discrimination policy, anti-harassment policy, equal employment opportunity policy, application form, job postings and other documents that address non-discrimination.

• TRAINING: Training programs and materials related to discrimination, harassment, diversity, cultural competency, supervision, leadership and company policy should address gender identity. Educate employees, particularly HR staff, management, supervisors, decision-makers, security, and reception staff, about transgender people. During training, explain the concept of gender identity (a person’s internalized sense of who s/he is as male or female or some combination of those characteristics); that a person’s gender identity does not always match society’s stereotypical expectations; that it is illegal to discriminate on the basis of gender identity; and that confidentiality and discretion are of the utmost importance for a transgender employee.

• INSURANCE: Offer comprehensive health insurance to transgender employees and employees’ transgender dependents that clearly and explicitly affirms coverage and contains no categorical exclusions for coverage of all transition-related medical care identified as appropriate in the World Professional Association for Transgender Health (WPATH) Standards of Care (SOC).

• PREFERRED NAME & PRONOUN: Allow employees to self-identify their preferred name (including non-legal name) and choice of pronoun. Have a policy and system for using employees’ preferred name and pronoun on personnel records, internal and external employee directories, business cards, website and other written and electronic records.

• EQUAL FACILITIES ACCESS: Develop a policy that allows employees (and clients and other visitors) to access restrooms and other traditionally sex-segregated facilities. Allow individuals to use the facility that is consistent with their gender identity and expression and make all staff (including “gatekeepers” such as reception and security staff) aware of the policy.

• GENDER TRANSITION: Adopt a written policy that sets forth the responsibilities and expectations of the employer and employee when an employee undergoes gender transition.  Make the policy easily accessible to all employees.

Major Law Firms Leading the Charge

Many major law firms in Massachusetts have already made changes in their policies in order to create a welcoming environment for transgender individuals because they believe in the importance of treating all employees with dignity and respect.  In the process, many have discovered that offering comprehensive health insurance is a cost-effective way to provide an important benefit to valued employees.

“We've provided comprehensive healthcare for transgender employees and their dependants for several years as we understand that meeting the needs of a diverse workforce is critical to our firm's success," said Neil Jacobs, a partner at WilmerHale and a member of the firm's Labor and Employment practice group. “We stand among those businesses in the state who for some time have shared our fundamental values of fairness.”

“We are proud of our record of taking a leading role in promoting a diverse workplace respectful of all employees, including transgender individuals,” said Diane Patrick, a partner in the Labor & Employment practice group and chair of the Diversity Committee at Ropes & Gray. “Our employee health benefits include coverage of transition-related medical care, an illustration of our commitment to an inclusive work environment.”

Law firm leaders in ensuring equality for all employees, in 2012 both Ropes & Gray and WilmerHale each received a perfect score of 100 on the Human Rights Campaign’s Corporate Equality Index.  The Corporate Equality Index is a comprehensive annual rating of corporations and law firms with respect to their policies and environment for lesbian, gay, bisexual, transgender and queer employees.

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