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Why It Could Get Easier to Come Out as Transgender at Work

In two lawsuits, the government is going after people who discriminate against transgender employees.
Oct 2, 2014· 4 MIN READ
Nicole Pasulka is a writer and reporter who lives in New York City. She has written for Mother Jones, BuzzFeed, The Believer, and the New York Observer.

In the late summer of 2010, Tamara Lusardi, whose birth name is Todd, informed a supervisor that she wanted to start transitioning from male to female at work. Tamara Lusardi had been working as a quality assurance specialist for the U.S. Army for six years. She had already legally changed her name from Todd to Tamara, updated her social security card to reflect that name and gender, and received letters from her doctor confirming that she was going to be living as a woman.

Lusardi says she told the supervisor she’d like to start the process of updating her security information and announce the change to her coworkers after Jan. 1, 2011.

The supervisor and management seemed OK with things at first, Lusardi says. “We want to take care of you,” she says they told her. Her security information was updated as planned. But then, though she’d made it clear she didn’t want to announce her transition or start coming to work dressed as a woman for several months, the name on her email account was prematurely switched from Todd to Tamara. She realized this when her coworkers started responding to her emails with “Who is Tamara?”

Around the same time a male coworker accidentally bumped into Lusardi and noticed the 38C breasts she’d been binding down. Lusardi is an intersex person who began developing female sex characteristics later in life because of a medical condition. After the encounter, she started to hear that people at work were gossiping about her.

Lusardi and her supervisor had no choice but to move up the date for announcing her transition to the rest of the staff. As planned, she sent a letter to her coworkers telling them her new name and pronoun. But being legally female and having changed all her documentation with the Army wasn’t enough to convince Lusardi’s supervisors to let her use the women’s bathroom, even though outside work she used public women's restrooms without a problem.

While she was on the clock, however, she was required to use a single-occupancy restroom at the front of the building because she hadn't had gender-reassignment surgery. Sometimes that bathroom didn’t work, so she used the women’s room. “You’re making people uncomfortable,” Lusardi says the supervisor told her.

Now, on the heels of a recent case and two new lawsuits, people like Lusardi may have increasing legal rights against discrimination.

The shift began in 2012, when veteran police officer and transgender woman Mia Macy sued the Department of Justice for denying her a job with the Bureau of Alcohol, Tobacco, Firearms and Explosives. She claimed the agency refused to hire her because she'd come out as transgender. The U.S. Equal Employment Opportunity Commission ruled in Macy's favor and found that discriminating against employees because they are transgender, or because they have transitioned or plan to, is sex-based discrimination and violates Title VII of the 1964 Civil Rights Act.

Last week, for the first time since that ruling, the EEOC has filed two lawsuits on behalf of transgender women who say they were discriminated against at work. In Florida, the EEOC says that Lakeland Eye Clinic fired an employee who started transitioning from male to female at work. In Detroit, the EEOC alleges that a funeral home fired Amiee Stephens after she gave them a letter indicating her plan to transition from male to female.

A representative for the EEOC said that in 2013, the first year it began collecting transgender-specific complaints, it received 131 charges alleging discrimination based on gender identity. That the EEOC is enforcing this law makes a “huge difference” for transgender people, says Sasha Buchert, Lusardi's lawyer and a staff attorney with the Transgender Law Center in San Francisco. It's especially critical for people in states that don’t have gender nondiscrimination laws. According to a national survey of transgender people, 90 percent said they'd experienced harassment, mistreatment, or discrimination on the job or had hidden their identities at work.

Even with expanded legal protections, transitioning at work is bound to be complicated. Experts argue that how an employee approaches the process and how employers and management respond can have a critical impact on the trans person’s safety and job security, the comfort of other employees, and in some cases, the profit margins of the company.

As the EEOC lawsuits show, it can also lead to legal action.

“More and more people are coming out of the closet at the workplace,” says Buchert. There’s no single right way to do things, but Buchert and the Transgender Law Center recommend that rather than waiting until an employee comes out as trans to address nondiscrimination, companies should preemptively create policies to deal with privacy and rights. That way when an employee announces that he or she is transitioning, the employer can point to a specific policy and help to educate coworkers.

Employees who are transitioning should first go to human resources or their managers, says Vanessa Sheridan, a consultant and author of the book Transgender in the Workplace. To “just show up at work in their opposite gender” without warning could bring "backlash," Sheridan says.

Despite what happened to Lusardi, Amiee Stephens, and the employee at Lakeland Eye Clinic, many employers have protected people transitioning at work from discrimination and harassment. For Sheridan, this is not only the legal and right thing to do—it’s also good business sense. A workplace where trans people can come out safely will have “healthier, happier employees, and a more aware, more informed workforce,” she says. “When you know what the expectations are, teamwork improves.”

One common way of announcing transition is in an email that explains to coworkers the transitioning person's new name and pronoun. That's what Lusardi planned to do before her email address prematurely outed her. In ideal situations, the email is often sent on an agreed-upon date and will mention that the transitioning employee has legal protection from harassment and the right to use the bathroom according to his or her gender identity.

Buchert and Sheridan recognize that some people might feel uncomfortable about sharing a bathroom with someone they know is transgender. Buchert acknowledges that “it’s OK to be uncomfortable, but it’s not OK to harass," and Sheridan thinks it's a good thing to talk about during employee trainings.

After Lusardi’s transition became public at work, she says that she had a handful of supporters. But she felt she was slowly demoted. While she’d previously received awards and accolades, she feels she was bumped down the hierarchy on projects and kept at her desk and away from contract work for months at a time. People were talking, but no manager or supervisor was stepping in. “I heard somebody call me a f---ing tranny in the hallway, reported it to my supervisor, and she said, ‘It’s human nature. People are going to talk,” Lusardi says.

If the Army had given the employees a professional training session, Lusardi thinks things might have been better. She has filed her own complaint with the EEOC and is committed to fighting the battle in court. Despite that she believes her rights were violated, Lusardi knows that the idea that someone could transition and stay in her job afterward would have been hard to imagine 20 years ago. “In the ’80s, ’90s, you transitioned and you moved away, or you were fired and blacklisted,” Lusardi says. Things are better now. Back then, the only way to survive was to “try to find work 100 miles away.”