Discrimination When Transitioning on the Job


Transgender people have the right to transition on the job and have the right to be treated equally while out in the workplace as a transgender person. A good working relationship before transition can be a key factor to avoid any conflicts. However, after an employee does begin transitioning, problems may still arise, especially if the employer is uncomfortable with gender non-conformity or transgender issues.1 If an employee is in bad standing, the employer could take advantage of this relationship to let the person go, when in reality the employer is motivated by prejudice which would constitute illegal discrimination. A good working relationship can also have a positive influence on the court as they attempt to determine if the employee was discriminated against. Transgender at Work’s Checklist for Transitioning in the Workplace is a helpful list of steps for transgender employees to consider during the process of planning to or undergoing a transition while on-the-job: http://www.tgender.net/taw/tggl/checklist.html.

Sex reassignment surgery expenses

California’s Insurance Gender Non-Discrimination Act, enacted in 2006, prohibits insurance plans and healthcare service plans from discriminating on the basis of gender in the provision of benefits or coverage.2: Enacted in 2010, the Affordable Care Act (ACA) prohibited such discrimination at the federal level for the first time, however the effects of such legislation remain to be seen.3 Only the District of Colombia and six states, California included, have formally issued bulletins clarifying that they are interpreting section 1557 of the ACA to mean coverage of transition-related care.4

Some private employers may provide insurance that includes coverage for sex reassignment surgeries (SRS) but there is no law that requires private health providers to award payments for SRS's. The policy to which a private employee subscribes will vary from employer to employer and, very often, will not include such coverage. As of 2011, however, 207 major companies surveyed by the Human Rights Campaign, or 33% of the total, offered insurance coverage for sex reassignment surgery.5

In terms of public employers, the City of San Francisco was the first jurisdiction in the United States to remove the exclusion for gender identity disorder from its health coverage of city and county employees. State health programs such as Medi-Cal will cover some procedures, such as sex reassignment surgery and hormone treatment. It is true that Medi-Cal regularly tries to deny coverage for sex reassignment procedures. However, California courts have, on several occasions, overruled these denials and ordered Medi-Cal to pay for the procedures.6

In addition, San Francisco began covering sex reassignment surgery for uninsured residents in 2012, with such surgeries to be administered by the San Francisco Department of Public Health at San Francisco General Hospital.7

Name and gender marker change

Some employers believe that an employee must get a court order to legally change the employee’s name, but this is not correct. California explicitly recognizes “common law” name changes for a majority of people in the state. A common law name change means that, without going through the court system, a person can legally change his or her name simply by using the new name consistently and exclusively.8 Furthermore, an employee does not need to get court recognition of a change of gender prior to requesting that an employer change the employee’s gender marker in records and on identity documents. An employer should also not require such an order prior to effectuating such a request.9

  1. Glenn v. Brumby, 663 F.3d 1312 (8th Cir. 2011) (supervisor testified he fired employee transitioning from male to female because he considered it “inappropriate” for her to appear at work dressed as a woman). 

  2. Cal. Ins. Code § 10140. See also Gender Non-discrimination Regulations, Transgender Law Center, http://transgenderlawcenter.org/wp-content/uploads/2013/04/CDI-Gender-Nondiscrimination-Regulations.pdf, Last visited June 2, 2014. 

  3. National Women’s Law Center, Nondiscrimination in the Affordable Care Act: Section 1557, http://www.nwlc.org/resource/nondiscrimination-protection-affordable-care-act-section-1557, Last visited June 6, 2014. 

  4. Tara Murtha, The Problem With Obamacare for Some Transgender Policyholders, Last visited June 6, 2014. 

  5. Lisa Leff, Gender Reassignment: Number of Big U.S. Companies Covering Transgender Surgery Rises, Huffington Post, Dec. 8, 2011, http://www.huffingtonpost.com/2011/12/08/gender-reassignment-operation-coverage_n_1135951.html. Last visited May 27, 2014. 

  6. Medi-Cal and Gender Reassignment Procedures, Community Health Advocacy Project and Transgender Law Center, May 2002, http://transgenderlawcenter.org/issues/health/medical-fact-sheet. Last visited May 27, 2014. 

  7. City and County of San Francisco Health Commission Resolution No. 12-12, Nov. 6 2012, http://www.sfdph.org/dph/files/hc/HCRes/Resolutions/2012/hsf%20tran%20exclusion%20removal.pdf. Last visited May 27, 2014. 

  8. Cal. Civ. Proc. Code § 1279.5. See also In Re Weingand, 231 Cal. App. 2d 289, 294 (1964). 

  9. Advancements in State and Federal Law Regarding Transgender Employees: A Compliance Guide for Employers and Employment Law Attorneys, National Center for Lesbian Rights and Transgender Law Center, http://www.nclrights.org/wp-content/uploads/2013/07/complianceguideemployers1.pdf, Last visited May 27, 2014.