As an attorney and professor specializing in the employment issues of trans employees, I am often asked what organizations should do, when facing an employee transition, about records showing a different name and gender.
Certainly, the employee database, business cards, wall and desk placards, email and voicemail information should be updated with the new information. One problem, however, is 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. This can be a difficult administrative problem to address.
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 some organizations routinely 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. I recommend that trans employees work with their HR departments to ensure that, where a name change order cannot easily be obtained, the common-law rule be used as an appropriate alternative.
Even more problematic, however, is the fact that only two US states (Texas, interestingly enough, is one of them) 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. (See, for example, my article on problems with submission of medical claims to insurers in the Journal of Controversial Medical Claims.)
For example, Social Security Administration rules changed several years ago 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.
Fortunately, the federal government recently changed its rules so that no-match letters are no longer a threat to trans employees.
One legal department that I know of 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 spoke to Christopher Daley, an attorney, about this point some years ago, while he was 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. I also have never heard of any problems regarding this, and it is not a valid objection to effectuating a name and gender change in the employer's records.
Some employers have inappropriately asked trans employees for confidential medical information regarding their surgical status. Sex reassignment surgery (or gender confirmation surgery, as some call it) should be a criterion for recognition of gender identity. "Sex reassignment surgery" refers to surgical procedures intended to assist in transition from one sex to another.
The use of SRS as a factor is inappropriate because there are numerous types of SRS, which vary in their effectiveness and appearance. Such a requirement would require the employer to assess proof regarding specific details of the employee's medical history and treatment. This is problematic because such questions may impact medical privacy laws, which differ by jurisdiction.
The use of SRS as a factor is also inappropriate because it may create the perception that the employer endorses, condones or regulates its employees' decision to undergo gender transition. This is undesirable for reasons including employee relations, public relations, insurance coverage and potential litigation. It is best for employers to stay out of the employee's medical decision-making.
SRS also does not address all objections to facilities usage, such as bathrooms. The standards of care of the primary medical organization in this area (www.hbigda.org) require successfully living as the opposite sex for a year or more prior to medical approval for surgery. Therefore, it is likely that an employee in transition will not complete his/her medical treatment for a substantial period of time. Furthermore, bathroom usage does not generally involve public viewing of nudity. Therefore genital surgery is irrelevant to the facilities usage determination and, by extension, to a determination of gender identity on employer records.
The bottom line is that, while name and gender changes present some administrative challanges to employers, these are solvable, and should not present a barrier to respecting the name and gender of those who transition on the job.