Transgender and Nonbinary Gender Policy in the Public Sector

Transgender and Nonbinary Gender Policy in the Public Sector

Nicole M. Elias, Department of Public Management, John Jay College of Criminal Justice

https://doi.org/10.1093/acrefore/9780190228637.013.1168
Published online: 23 May 2019

Summary
Our understanding and treatment of gender in the United States has evolved significantly over the past four
decades. Transgender individuals in the current U.S. context enjoy more rights and protections than they have in
the past; yet, room for progress remains. Moving beyond the traditional male–female binary, an unprecedented
number of people now identify as transgender and nonbinary. Transgender identities are at the forefront of gender
policy, prompting responses from public agencies at the local, state, and federal levels. Because transgender
individuals face increased rates of discrimination, violence, and physical and mental health challenges, compared
to their cisgender counterparts, new gender policy often affords legal protections as well as identity-affirming
practices such as legal name and gender marker changes on government documents. These rights come from legal
decisions, legislation, and administrative agency policies. Despite these victories, recent government action
targeting the transgender population threatens the progress that has been made. This underscores the importance
of comprehensive policies and education about transgender identities to protect the rights of transgender people.

Keywords: gender, gender identity, gender policy, LGBTQ+, transgender, nonbinary, transgender policy, nonbinary policy,
legal protections, anti-discrimination, LGBT politics

Subjects: Groups and Identities

Introduction

Sex and gender are complex demographic categories that prompt policy and human resources
responses at both the individual and organizational levels (Elias, 2017). During the last four
decades, transgender and gender-variant issues have become more visible in daily life and public
1
affairs (Taylor, 2007). In 1975, Minneapolis became the first city in the United States to prohibit
discrimination based on gender identity or expression (Colvin, 2007). Since then, many states
have made strides with transgender-inclusive laws, including permitting people to use the public
restroom that aligns with their gender identity (“Understanding Transgender,” 2017). At the
federal level, the Obama administration was a strong proponent of transgender rights, taking the
position that that Title VII of the Civil Rights Act of 1964 applied to claims of discrimination based
on gender identity (Elias, 2017; “Understanding Transgender,” 2017). Several state jurisdictions
have also added a third gender marker option (an “X” instead of an “F” or an “M”) on state-
issued identity documents, an important step for nonbinary people—those who identify outside
of the male–female binary (District of Columbia Department of Motor Vehicles, 2017; NY A08524,

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Transgender and Nonbinary Gender Policy in the Public Sector

2017; Oregon Judicial Branch, 2017; Gender Recognition Act of 2017, 2017; An Act Relative to
Gender Identity, 2017; State of Oregon v. Shupe, 2016; Vermont Department of Public Safety Law
Enforcement Advisory Board, 2018).

Gender identity and expression are often thought of in the context of sexual orientation, though
they are not necessarily related (Colvin, 2007). Transgender policy has historically and politically
been linked to gay and lesbian policies. However, sexual orientation protections policies do not
cover transgender and gender-variant people, despite the fact that gay/lesbian and transgender
identities are often conflated (Taylor, Lewis, Jacobsmeier, & DiSarro, 2012). Commonly, state-
level protections focusing on gays and lesbians have been passed and then later used to support
the passage of similar legislation for transgender people (Elias, 2017). Transgender and gender-
variant people face discrimination and violence that cisgender gays and lesbians do not (Colvin,
2007). When surveyed separately from lesbian, gay, and bisexual people, Badgett, Lau, Sears, and
Ho (2007) found that transgender people reported similar or higher levels of employment
discrimination. The authors also found that transgender people report high rates of
unemployment and very low earnings.

Transgender individuals have a unique set of mental and physical health needs that should be
taken into account (Stroumsa, 2014). These needs are compounded by prejudices against
transgender people within both the medical system and society at large. Transgender people have
a complicated history with medicine—particularly, transgender identity being classified as a
mental illness (Stroumsa, 2014). Most recently, the American Psychological Association approved
a change of gender identity disorder to gender dysphoria in the DSM-V, a significant move
toward depathologizing gender variance. In the United States, individuals generally secure health
coverage through employer-provided group plans, government-subsidized plans (like Medicare
and Medicaid), or an individual plan purchased via state insurance exchanges (Human Rights
Campaign, 2015). Doctors’ offices and other healthcare centers can frequently be sources of stress
for transgender and gender-variant people (Stroumsa, 2014). Medicaid and many private
insurance plans may specifically exclude hormone replacement therapy (HRT) and gender
confirmation surgeries for trans people (Currah, 2008). The Affordable Care Act (known
colloquially as Obamacare) bars plans offered on Healthcare.gov from discrimination based on
gender, which has been interpreted to include transgender individuals (Mullaney, 2018). It is
unclear what the future of transgender coverage under the ACA will hold, considering the Trump
administration has stated that it plans to roll back this rule against transgender discrimination
2
(Pear, 2018). However, many large private sector employers have taken steps to actively remove
exclusions on transgender healthcare from their employer-provided plans (Human Rights
Campaign, 2015). Companies like Amazon, Apple, and IBM cover gender-affirmation surgeries
(Mullaney, 2018). Employers can provide transition-related care through their employer-
provided plans by negotiating out exclusionary statements and negotiating in affirmative
coverage (Human Rights Campaign, 2015).

According to the American Public Health Association (2016), policies and practices that exclude
transgender and gender-nonconforming people have a negative impact on gender-variant health
by permitting discrimination and reinforcing stigma. Inclusive policies and practices are those
that recognize transgender and gender-nonconforming identities as valid and deserving of equal

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Transgender and Nonbinary Gender Policy in the Public Sector

consideration and treatment. Denial of rights for LGBTQ people can result in discrimination in
housing and jobs; lack of benefits; harassment and stress; and risk-taking behaviors (Marks,
2006). Transgender and nonbinary gender policy in the current U.S. context impacts individuals
within the United States and public servants. Some of the most pressing transgender and
nonbinary gender issues include sex-based discrimination; workplace, education, and healthcare
policy; and gender markers on state-issued identification documents. These realms of policy and
practice take different forms in different contexts, from individuals representing their identity on
forms and state-issued documents, to public servants using restroom facilities, and situations
involving institutions of higher education.

A Note About Terminology

Language describing gender identity is constantly evolving and changing. Gender identity and sex
are frequently conflated, but they in fact describe different concepts. Sex refers to physical sexual
characteristics, including genitals and secondary sex characteristics, and has two categories,
male and female. Sex is what current terminology calls “assigned at birth,” meaning that people
do not self-identify their sex when they are born; rather, it is assigned to them by medical
professionals, the state, and their parents. Infants are assigned a sex usually based on their
external anatomy. Gender identity is how one conceptualizes and thinks about one’s own gender,
and how people perceive and present themselves. This may align with their sex assigned at birth,
or this may be different from their sex assigned at birth. Gender identity and sexual orientation
are also often conflated. Sexual orientation refers to whom one is sexually and/or romantically
attracted (i.e., whether one is straight, gay, bisexual, etc.) and is separate from one’s gender
identity.

“Transgender” describes a person whose gender identity is incongruous with the sex assigned at
birth. Transgender persons may identify within or outside the gender binary. It is an umbrella
term that covers all people with a gender identity that is different from sex assigned at birth.
Trans people (“trans” is shorthand for transgender) may identify within the male–female gender
binary (e.g., a person who was assigned male at birth but identifies as female), or they may be
nonbinary. Nonbinary people are people whose gender identity falls outside of the gender binary.
Cisgender people are people whose gender identity and assigned sex at birth are the same—for
example, a person who was assigned female at birth and identifies as a woman is cisgender.
Cisgender identities fit into the gender binary, as they are either male or female.

What was permissible—even embraced—terminology 15 years ago may be considered inaccurate

and even offensive today. The term “transsexual” is no longer viewed as an appropriate way to
refer to transgender people. Although some trans people may identify with this word and use it to
describe themselves, it is by many considered an outdated and offensive term, largely due to its
reference to sex and anatomy. Use of the term “transsexual” remains strong in the medical
community because of the DSM’s prior use of the diagnosis “Transsexualism” (changed to
“Gender Identity Disorder” in DSM-IV) (Fenway Health, 2010). “Transgendered” is also
considered offensive; it has been compared to using “colored” versus “person of color” (Lopez,
2015). Herman (2010) furthers this comparison, saying, “One problem with this label was that it

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Transgender and Nonbinary Gender Policy in the Public Sector

implied something happened to make the person ‘of color,’ which denied the person’s dignity of
being born that way.” Transgender is an adjective, whereas only verbs can be transformed into
participles by adding “-ed” to the end of the word. Similarly, “transgender” is not a noun;
therefore, one would say “a transgender person” or “transgender people” as opposed to simply
“a transgender” or “transgenders.”

Transgender Policy Impacting Individuals

Transgender policy in the United States has evolved significantly over the past four decades.
Transgender individuals in the current U.S. context enjoy more rights and protections than they
have in the past; yet there remains room for progress. Throughout the 1970s, federal courts held
that Title VII did not protect transgender and gender-variant people from discrimination (Colvin,
2007). However, in 1989 with Price Waterhouse v. Hopkins, this began to change (Colvin, 2007;
Elias, 2017). Ann Hopkins claimed that her employer, Price Waterhouse, denied her partnership
two years in a row on the basis of her lack of conformity to typical feminine stereotypes (Legal
Information Institute, n.d.). This ruling “determined that ‘gender stereotyping’ cannot be a
component of promotion, and such actions violated Title VII of the Civil Rights Act of 1964” (p.
341) and opened the door for transgender plaintiffs to make claims that they were discriminated
against on the basis of failure to conform to sex stereotyping. In March 2005, the Sixth Circuit
Court cited Price Waterhouse v. Hopkins in its ruling in Barnes v. City of Cincinnati. Philecia Barnes, a
pre-transition transgender woman, passed the sergeants’ exam but then failed the probationary
period required to become a police sergeant in the Cincinnati Police Department (Barnes v. City of
Cincinnati, 2005). Barnes brought suit against the City of Cincinnati, claiming that her failure of
the probationary period was due to her failure to conform to masculine sex stereotypes. The Sixth
Circuit court held that Barnes’s Title VII claim was actionable and ruled in her favor. Price
Waterhouse v. Hopkins and Barnes v. City of Cincinnati are major legal precedents for sex
discrimination cases that fall under Title VII (Colvin, 2007). Courts have shown their support for
transgender and gender-variant employees to express their gender identity in the workplace.
Additionally, all states also allow people to change their gender on at least one form of legal
documents to better reflect their gender identities.

Transgender Policy in the Workplace

Sexual orientation has increasingly been included in the list of protected classes in public-sector
workplaces; however, gender identity is frequently neglected (Elias, 2017). Unsurprisingly,
transgender and gender-variant people were marginalized within or excluded from the incipient
gay rights movement (particularly in the 1970s to 1990s) because they were viewed as a threat to
political progress (Taylor et al., 2012). The 2011 National Transgender Discrimination Survey
found that respondents experienced double the rate of unemployment, near universal
harassment on the job, and considerably greater loss of jobs and careers as compared to cisgender
people (Grant et al., 2011). Additionally, transgender people who are employed report a higher
amount of experiences with transphobia, internalized transphobia, and stigma related to mental
health than transgender people who are unemployed (Christian, 2017, p. 1). Colvin (2007) found a

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Transgender and Nonbinary Gender Policy in the Public Sector

strong link between economic discrimination and violence, concluding that the workplace can be
one of the most dangerous places for transgender people (p. 340). Currently, transgender and
gender-variant people have four federal protections in the workplace: Title VII of the Civil Rights
Act of 1964; The Civil Service Reform Act of 1978, which prohibits discrimination by the federal
government on the basis of “conduct which does not adversely affect the performance” of an
applicant or employee; Executive Order 13087, which prohibits discrimination in federal
employment based on sexual orientation or gender identity; and Executive Order 13672, which
prohibits anti-LGBT discrimination by federal contractors (National Center for Transgender
Equality, n.d.; U.S. Equal Employment Opportunity Commission, 1998; U.S. Equal Employment
Opportunity Commission, 2014; U.S. Office of Personnel Management, 2015). The Equal
Employment Opportunity Commission (EEOC), the agency that enforces Title VII, has stated that
“employees who are receiving federal money as civilian employment, who believe they have been
discriminated against owing to their gender identity or sexual orientation, can now file a
complaint with the Equal Employment Opportunity counselor at their place of work” (Christian,
2017, p. 3).

The federal government has been a leader in addressing the changing needs of LGBTQ employees
in recent years (Elias, 2017). The federal Employment Non-Discrimination Act (ENDA), which
prohibits employment discrimination on the basis of sexual orientation and gender identity, as
well as protections for LGBTQ people similar to those available under existing federal
antidiscrimination laws for other protected classes of workers, has a rocky history (National
Center for Transgender Equality, 2014a). ENDA had been “floating around” Congress since the
1970s in some form or another (Currah, 2008). In the early 2000s, criticism arose that the focus
of ENDA had become too narrow, and many LGBTQ organizations were divided on their support
for or disapproval of the bill (Goldberg, Hittson, & Hu, 2014). In 2007–2008, Representative
Barney Frank—an openly gay congressman—and House Speaker Nancy Pelosi proposed a version
of the bill that excluded gender identity protections from ENDA, which created backlash in trans
and queer communities (Currah, 2008, p. 332). Representative Frank opposed the inclusion of
gender identity in the protected classes, stating, “Transgendered people want a law that
mandates a person with a penis be allowed to shower with women. They can’t get that in
ENDA” (Currah, 2008, p. 333). There was an intense debate in LGBTQ communities about whether
LGBQ people should seek legal protections first and then seek protections for transgender people
(Goldberg et al., 2014). Supporters of a gender identity-inclusive ENDA relied on the same
arguments that had been made about prohibiting LGBQ discrimination: “that they are
discriminated against and that all Americans have the right to be judged on their work
performance and not on non-work-related indicia” (p. 32). Unfortunately, studies outlining
discrimination based on gender identity did not exist in 2007, and this affected crucial testimony
heard by Congress. In 2009, the bill was reintroduced with gender identity protections added back
in. The bill passed in the House, but not the Senate in 2013, but its history shows how difficult it
can be to obtain antidiscrimination protections specifically for transgender and gender-variant
people.

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Transgender and Nonbinary Gender Policy in the Public Sector

Most federal agencies do not have comprehensive transgender and gender-variant employee
policies (Elias, 2018). Inconsistencies in the way transgender policy and implementation are
handled from agency to agency is a pervasive problem in government (Elias, 2017). Out of
approximately 235 federal agencies, only 9 have comprehensive transgender policies (Elias, 2017,
2018). Without a comprehensive set policy, agencies are left unprepared when an employee
decides to transition, which can include physical changes (hormone replacement therapy,
surgery) as well as social changes (changing name, pronouns) (Elias, 2018). Agencies should have
explicit plans so that employees who want to transition know where to go to begin the transition
process, where they can find answers about what a transition might entail for an agency
employee, and what is required to change applicable records. Comprehensive transgender policies
help transgender employees understand their rights and know where to go for assistance.
Specifically, these policies should address plans for restroom and locker room use, flexible dress
codes, and respectful use of proper names and pronouns. Laws that force transgender and
gender-variant employees to use the bathroom or locker room that corresponds to their sex
assigned at birth (not their gender identities) was declared in violation of Title VII and Title IX of
the Civil Rights Act as well as the Violence Against Women Reauthorization Act of 2013 by the U.S.
Department of Justice. In 2013, the Equal Employment Opportunity Commission found that the
intentional and repeated misuse of a transgender employee’s new name and pronoun could harm
the employee and thus substantiate a claim of sex-based discrimination and harassment.

A person’s gender transition often calls for deep commitment from employers, friends, family,
and co-workers. Supporting employees who transition may require training of employees to
make the transgender individual feel comfortable in the workplace, and some employers may not
be willing to make that commitment (Atkinson, 2009). Although many employees want to be
supportive of an individual in transition, others may be offended by the idea of transition (Society
for Human Resource Management, 2017). However, transgender inclusion is disruptive to
workplace productivity only when the initiative is poorly implemented and/or not fully supported
by top management (Sheridan, 2013). According to the Society for Human Resource Management
(2017), employers need to make clear statements in employee handbooks, rules manuals,
orientation, and training that all employees are welcomed and supported, and should examine
their current policies and practice and consider covering gender identity and gender expression in
those policies.

Public accommodation laws for transgender and gender-variant people vary widely across the
country. Public accommodations are establishments that provide goods and services to the
general public, and can include restaurants, hotels, stores, hospitals, and restrooms (National
Center for Transgender Equality, 2014b). Federal nondiscrimination laws covering public
accommodations cover race, color, religion, national origin, and disability, but not sex, gender
identity, or sexual orientation. As of May 2018, the majority of states (44 plus the District of
Columbia) prohibit discrimination based on sex in public accommodations, and many state courts
and enforcement agencies have interpreted these laws to protect transgender people. Many states
(18 plus the District of Columbia) and localities also explicitly prohibit discrimination based on
gender identity and sexual orientation in public accommodations. More than 200 cities and
counties also explicitly prohibit gender-identity discrimination even if their state does not.
Denial of access to a public restroom that is consistent with a person’s gender identity may

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Transgender and Nonbinary Gender Policy in the Public Sector

constitute discrimination based on sex and/or gender identity. Many state and local laws, or
official interpretations of those laws, explicitly protect this right; however, in a few jurisdictions
the laws have been interpreted not to protect this right.

Identity Markers
The gender marker (typically an “M” for “male” or “F” for “female”) on state-issued identity
documents (e.g., birth certificate, driver’s license) is pertinent to the discussion of gender- and
sex-based discrimination. When a transgender person transitions, they frequently seek to change
their name and the gender marker on their identity documents to reflect their gender identity.
Gender markers that are inconsistent with a person’s gender identity and expression (e.g., a
transgender woman who has an “M” on her driver’s license) can out people as transgender and
put them at risk of discrimination or even violence. However, every state has a different policy
regarding changing one’s name and gender marker (Ballard, 2012; National Center for
Transgender Equality, 2018; Transgender Law Center, 2017). To change the gender marker on a
birth certificate, for example, requirements vary widely depending on the state. Some states
require a trans person to undergo gender confirmation surgery before changing their gender
marker (Transgender Law Center, 2017). Other states do not have surgical requirements, but
require a court order and/or a letter from a doctor. In a handful of states, the law does not
explicitly provide for gender marker correction, but it may be possible with a court order.
Tennessee forbids amending the gender marker on a birth certificate. Each state also differs in
how it changes the record. Some states will amend the existing birth certificate to reflect the new
gender and name, whereas others will issue a new birth certificate and seal the previous
certificate and birth record (Ballard, 2012, p. 787). Ballard (2012) argues that “the subtlest form of
discrimination is denying someone a name and recognition—denying him or her an identity” (p.
775). Every state’s policy differs from the federal government’s policy for issuing such new
documents, which has the potential to prevent trans people from traveling internationally—or
doing anything else that requires uniformity of identity documents. In addition, various
administrative agencies may have their own policies pertaining to name and gender marker
changes, often making it difficult for trans people to obtain benefits such as Medicaid or Social
Security (p. 788).

In June 2010, the U.S. Department of State implemented a policy that allows transgender people to
change the gender marker on their passports and Consular Certificates of Birth Abroad,
regardless of their current or future surgical status (p. 775). It does, however, still require a
statement from a licensed physician stating that “the applicant had appropriate clinical
treatment for gender transition to the new gender” (p. 788). Applicants also need to show proof
of U.S. citizenship, fill out an application, and provide proof of identity that includes a signature
and a photograph as well as a recent color photograph. Applicants who are also changing their
name need an Order for Name Change with a judge’s signature. Identity markers are pressing
concerns not only for individuals in the United States but also for public servants in federal, state,
and local agencies. Certain states in the United States are also making important headway for
nonbinary people and representation of their gender on their identification documents.

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Transgender and Nonbinary Gender Policy in the Public Sector

Nonbinary Gender Policy

Nonbinary individuals, those whose gender identity falls outside the male–female binary, have
recently been recognized in public policy in the United States. In the current U.S. context, gender-
neutral markers on state-issued identification documents (an “X” instead of an “M” or an “F”)
have been enacted, adopted, or proposed in seven American jurisdictions: Oregon; Washington,
D.C.; California; Massachusetts; Washington State; Vermont; and New York (District of Columbia
Department of Motor Vehicles, 2017; NY A08524, 2017; Oregon Judicial Branch, 2017; Gender
Recognition Act, 2017; “An Act Relative to Gender Identity,” 2017; State of Oregon v. Shupe, 2016;
Vermont Department of Public Safety Law Enforcement Advisory Board, 2018). There is
considerable variation in U.S. jurisdictions regarding the requirements and process for changing
one’s gender marker to an X, including applications, fees, letters from psychiatric and medical
doctors, and court orders.

Nonbinary Gender Identity Markers

Each of the American jurisdictions that offer the X marker varies in its policy forms,
requirements, and procedures. Washington, D.C., allows individuals to apply for the X marker on
their driver’s licenses, and Oregon allows for the X marker on licenses as well as birth certificates.
Washington State allows the X marker on birth certificates. Massachusetts, New York, California,
and Washington, D.C., also have legislative policies in progress allowing for the X marker.
Vermont and Maine are in the early stages of discussing creating X marker policies. These
jurisdictions are on the forefront of nonbinary policy in the United States; the X gender marker is
one step toward full integration of transgender and gender-variant people into society. Public
and private institutions are beginning to address nonbinary policy in different contexts.
Educational institutions are at the forefront of this emergent policy, particularly in the areas of
gender-neutral housing and allowing students to list their chosen names and pronouns in
university systems.

Nonbinary Policy in U.S. Educational Institutions

Another policy area where positive progress has been made for transgender and gender-variant
people is education policy. According to the Every Student Succeeds Act (ESSA), educational
institutions have a responsibility to ensure that all students have equal access to educational
opportunities (Wernick, Kulick, & Chin, 2017). Schools must therefore implement policies and
practices to create and sustain learning environments that address educational disparities by
fostering the success of students who experience barriers to achieving educational outcomes.
Transgender students experience a range of barriers to accessing and succeeding within
educational institutions, barriers that are becoming increasingly well documented in the
literature. In 2013, the Colorado Rights Division, the agency charged with enforcing that state’s
antidiscrimination laws, became the first government body in the United States to rule that a six-
year-old transgender girl who was assigned male at birth must be allowed to use the girls’

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bathroom at her school (Archibald, 2016). Several states followed suit over the next few years,
allowing transgender students to not only use the restroom that aligns with their gender identity,
but to participate in the sex-segregated sport and use the sex-segregated locker room of their
choosing.

In May 2016, the Obama administration issued guidance on the responsibilities schools have
under Title IX of the Education Amendments of 1972 when it comes to their transgender students
(Trumble & Kasai, 2017). Since its passage, Title IX has stated that schools receiving federal
funding—including both K–12 schools and higher education institutions—cannot discriminate
against their students based on sex. This guidance clarified that Title IX’s prohibition of sex-
based discrimination protected transgender students in schools. The Obama administration also
specifically issued a directive instructing public schools across the country to allow transgender
students to use the bathroom that matches their gender identity (Weinhardt et al., 2017).
However, President Trump rolled back this Title IX guidance. This essentially means that the
Trump administration is informing schools that it is no longer necessary to interpret Title IX to
protect transgender students in schools (Trumble & Kasai, 2017; Weinhardt et al., 2017). Title IX
still remains the law of the land—as applied to discrimination, but not necessarily transgender
issues—with over 15 years of case law affirming that its nondiscrimination rules protect
transgender students (Trumble & Kasai, 2017). More than 40% of American public-school
students already attend a school that protects transgender students from discrimination.

One educational domain where there has been significant progress is college campuses. Some
colleges and universities have implemented gender-neutral housing, allowing students of any
genders to live together in dormitories (Erbentraut, 2015; Willoughby, Larsen, & Carroll, 2012).
Sex-segregated housing can often leave transgender, gender-variant, and nonbinary students
feeling as though they do not belong, and can be a stressful process. Almost one-fifth of the
National Transgender Discrimination Survey respondents reported being denied gender-
appropriate housing in a higher education setting, and 5% were denied on-campus housing
altogether (Grant, Mottet, Tanis, Harrison, Herman, & Keisling, 2011). Some researchers suggest
that “currently existing gendered housing policies are heterosexist and promote outdated gender
ideals” (Willoughby et al., 2012, p. 734). Colleges and universities offering gender-neutral
housing are limited in number; Willoughby et al. (2012) found that, of the 100 large universities
surveyed, only 16 indicated that they offered some form of gender-neutral housing (p. 737). Many
of the schools that had some form of gender-neutral housing only offered it on a case-by case
basis, and a few only offered it to transgender students (p. 742). Although this is a step in the
right direction, many students seeking gender-neutral housing have struggled. Students at
Northeastern University in Boston, Massachusetts, have reported that, despite its gender-neutral
housing policy, housing options are inaccessible or unavailable, or the options that are available
are undesirable (Lloyd, 2018). Colleges and universities with gender-neutral housing policies are
predominantly located on the east and west coasts, as well as in the Midwest (Willoughby et al.,
2012). The southern regions of the United States had virtually no universities with current or
future plans for gender-neutral housing (p. 744). In addition to gender-neutral housing, colleges
and universities are also starting to permit students to indicate their preferred names (instead of
their legal names) and/or pronouns in the university system (Pérez-Peña, 2013; Scelfo, 2015).

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Transgender and Nonbinary Gender Policy in the Public Sector

Prospective University of California students, for example, can choose among six gender
identities when applying: male, female, trans male, trans female, genderqueer/gender-
nonconforming, and different identity (Seth, 2015). Some schools are taking gender inclusiveness
a step further and covering gender-affirming medical procedures—such as hormone
replacement therapy and gender-affirming surgeries—under their student healthcare plans
(Pérez-Peña, 2013).

Many institutions are also changing policies and practices that exclude or marginalize
transgender students by conceptualizing gender as strictly male and female, such as college
forms that allow students to identify only as male or female (Beemyn, Curtis, Davis, & Tubbs,
2005). For example, the University of Maryland has introduced a slew of efforts aimed at
improving the transgender experience on campus, from ensuring that the student insurance plan
can pay for hormone therapy for transgender students to simply removing references to gender,
such as aiming a campaign about menstrual cups at “UMD students” who menstruate, rather
than women (Bauer-Wolf, 2017). Although the progress achieved on college campuses and
elsewhere in the United States should be celebrated, transgender- and gender-variant-inclusive
policy does not come without challenges.

Looking Ahead: Addressing Challenges and Next Steps of Transgender

and Nonbinary Gender Policy

LGBTQ politics, especially transgender politics, are divisive, and progress is dependent on the
demographics of the bodies creating the policies (Taylor et al., 2012). For example, Democratic
control of the legislature facilitates more LGBTQ-friendly policies (p. 77). Liberal states are more
likely to adopt LGBTQ rights policies than conservative ones. States with higher percentages of
college graduates are more likely to adopt LGBTQ-friendly policies. Hetero- and cisnormative
stereotypes and attitudes are pervasive in American society, and breaking from those stereotypes
inevitably creates backlash (Levi, 2006). The knowledge that gender is a social construction has
not broadly convinced courts that “every gender-based distinction or requirement in the
workplace is impermissible sex discrimination” (Levi, 2006, p. 92). Much of the research done on
social equity and cultural competence has been focused on the issues of race and ethnicity
(Johnson, 2011, p. 170). Legislatures, organizations, agencies, and other establishments seeking
to create comprehensive transgender and gender-variant policies may be unsure where to begin.
Organizations like the Transgender Law Center (n.d.) and Human Rights Campaign
(“Transgender Inclusion,” n.d.) have some material online to help guide the creation of
antidiscrimination.

Policies that allow transgender and gender-variant people to use the restroom that best aligns
with their gender identity (as opposed to their sex assigned at birth) are perhaps the most
controversial. For example, one common rhetoric among those who oppose these policies is that
sexual predators will take advantage of public accommodations laws and policies covering
transgender people to attack women and children in bathrooms (Grinberg & Stewart, 2017). This
is, of course, not supported by any data: antidiscrimination protections covering gender identity
have been around for years, and there is no evidence they lead to attacks in public facilities.

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Transgender-inclusive policies do not benefit only trans people; they are also beneficial for
workplaces, educational institutions, and society at large. For example, organizations that have
inadequate diversity initiatives are likely to experience problems with employee relations,
employee attitudes, increased employee turnover, and lower employee retention (Johnson, 2011).
Bezrukova, Jehn, and Spell (2012) define diversity training as “a distinct set of programs aimed at
facilitating positive intergroup interactions, reducing prejudice and discrimination, and
enhancing the skills, knowledge, and motivation of people to interact with diverse others” (p.
3
208). A recent Gallup study found that hiring a demographically diverse workforce can improve a
company’s financial performance (Badal, 2014). A gender-diverse workforce allows the company
to serve an increasingly diverse customer base. LGBTQ-friendly workplaces have been associated
with improved health, increased job satisfaction, better relationships with co-workers and
supervisors, and greater work commitment among the LGBT workers (Krejcova, 2015).
Employers also benefit from lower legal costs related to discrimination lawsuits as well as lower
health insurance costs through improved health of employees.

Protections for transgender and gender-variant youth in schools are likewise beneficial. Several
states have passed gender-identity antidiscrimination laws that apply to educational settings
(Lambda Legal, n.d.). Some specifically prohibit bullying on the basis of gender identity, and
often there are other explicit protections in place for transgender students at the local level (p.
27). Even in states that lack specific protections, transgender students still have enforceable legal
rights from several sources. More general state and local laws may be used to protect transgender
students facing discrimination, harassment, and privacy issues, and federal statutes like the
Equal Access Act and Title IX of the Civil Rights Act protect equal opportunity and free expression
rights (p. 27). A school climate and culture free of bullying and harassment is the right of every
student within the United States, guaranteed by the 14th Amendment (Green, 2017). In response
to school administrators, educators, students, and parents asking questions about how to support
transgender students, the U.S. Department of Education developed two documents: the
Department of Education’s Office for Civil Rights and the U.S. Department of Justice’s Civil Rights
Division jointly issued a Dear Colleague Letter about transgender students’ rights and schools’
legal obligations under Title IX of the Education Amendments of 1972; and the Department of
Education’s Office of Elementary and Secondary Education compiled examples of policies and
emerging practices that some schools are already using to support transgender students (Whalen
4
& Esquith, 2016). Within the past five years, college campuses are leading the way on inclusive
transgender and gender-variant policy. Higher education has historically been (and remains) a
positive location for students’ identity development (Torres, Jones, & Renn, 2009). Research has
shown the positive value of postsecondary curriculum, role models, and communities in
facilitating LGBTQ identity development (Bilodeau & Renn, 2005). Given the uneven legal
protections for LGBTQ students, it is imperative that institutions create and maintain policy
environments that ensure full inclusion and prohibit discrimination (Renn, 2017).

In practice, the most important challenge to address is devising a transgender- and gender-
variant-inclusive policy. Elias (2018) recommends that “policies specifically fashioned by
agencies to deal with transgender issues should, at a minimum, cover matters that arise when
[individuals] undergo [the] transition processes; restrooms and locker rooms; dress codes; and

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Transgender and Nonbinary Gender Policy in the Public Sector

the use of proper names and pronouns.” Additionally, transgender individuals are entitled to
privacy (Elias, Johnson, Ovando, & Ramirez, 2018; Transgender Law Center, n.d.). They have the
right to discuss their gender identity or expression openly, or to keep that information private
(Transgender Law Center, n.d.) Confidentiality when handling transitioning employee records is
especially important because these records can include sensitive information, such as name
change and medical records (Elias et al., 2018, p. 74). Transgender policies should support
individuals’ rights to express their gender identity while also respecting their right to keep their
transgender status a private matter if they so choose. Policies should specifically address avenues
of recourse if a transgender individual experiences harassment or discrimination. Elias et al.
(2018) recommend that organizations include resources and proactive programs to support and
protect transgender and gender-variant individuals (p. 71). The authors also found that a
definition section included in an organization’s transgender policy was crucial to the tone and
inclusiveness of that policy (p. 73). A definition section defines key terms (such as “transgender”
and “transition”) and positively contributes to organizations’ and individuals’ understanding of
the policy and the transgender experience. Policies should use inclusive language, such as “they”
instead of “he or she,” and “people” or “individuals” instead of “men and women.” A transition
plan is a crucial part of the policy. An organization’s transition plan should be flexible, with the
priority throughout the transition plan being guided by the transitioning employee’s preferences
(p. 73). Lastly, a plan can only be inclusive if the organization is supportive of the transgender
individual and if a proper method of deliberation and communication is conducted throughout
the creation of the creation of the policy (p. 74). Transgender and nonbinary gender policy will
grow and evolve with the help of supportive leadership and members of public organizations who
value inclusive policy and practice.

Although policy and public opinion is evolving favorably for transgender people, the Trump
administration has made it fairly clear that transgender rights are not part of their agenda. It is
unlikely that there will be major rollbacks of the gains transgender people have made in the past
couple of decades, as many of those gains are based on federal civil rights statutes and federal
court precedent, which cannot be quickly undone (Minter, 2018). As has been stated in this
article, many states have enacted laws and policies that protect transgender people, and social
acceptance is becoming widespread and continues to grow. However, President Trump has
already appointed one conservative Supreme Court justice and is in the process of nominating
another. Justice Neil Gorsuch has a history of ruling against transgender and LGBTQ people, and
with Brett Kavanaugh confirmed to the Court despite a contentious confirmation hearing, he tilts
an already conservative Court to the far right (Minter, 2018; National Center for Transgender
Equality, 2017). This is particularly important because there are many cases pertaining to LGBT
issues that could come before the Supreme Court soon. The Court may hear cases on the
constitutionality of discriminatory new state laws that allow discrimination against LGBT people
on the grounds of “religious freedom” (Minter, 2018). The Court may also hear cases affecting
transgender students. Right now, the lower federal courts have overwhelmingly ruled that federal
education law protects trans students and their access to education. A contrary decision by the
U.S. Supreme Court would be devastating for trans students. The power the Supreme Court and
the Trump administration hold over transgender rights in the United States makes
comprehensive state and organizational antidiscrimination policies all the more important.

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Transgender and Nonbinary Gender Policy in the Public Sector

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Notes

1. Gender variant can take on different meanings in different contexts. Here, it means people whose gender identity
does not align with their sex assigned at birth.

2. This is not the only Trump-era change regarding the transgender population. The Trump administration approved a
policy that bars transgender people who have undergone transition from serving in the military (Cooper & Gibbons-
Neff, 2018); filed a court brief that said Title VII of the Civil Rights Act of 1964 was not intended to provide protections
for LGBTQ workers (Wiessner, 2018); and rescinded protections for transgender students in public schools that had
allowed them to use bathrooms corresponding with their gender identity (Peters, Becker, & Davis, 2017).

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3. It is important to acknowledge that there is a scholarly debate surrounding the efficacy of diversity training (Dobbin
& Kalev, 2016). Scholars have expressed concern that diversity training may have no effect or perhaps even a negative
effect on trainees.

4. This has since been revoked by the Trump administration and Education Secretary Betsy DeVos.

Related Articles
Gender and Political Behavior

Queer International Relations

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