On the Friday before the Memorial Day Weekend, the Obama Administration released a new federal workplace antidiscrimination policy relating to gender identity.
There is history behind this policy release. Back on June 17, 2009, the Office of Personnel Management (OPM) released a memorandum entitled Federal Benefits and Non-Discrimination. In that memorandum, The White House directed the following:
“The Office of Personnel Management shall issue guidance within 90 days to all executive departments and agencies regarding compliance with, and implementation of, the civil service laws, rules and regulations, including 5 U.S.C. 2302(b)(10), which make it unlawful to discriminate against federal employees or applicants for federal employment on the basis of factors not related to job performance.”
Although the memorandum didn’t say that gender identity would be included in the antidiscrimination policy, in an announcement call with bloggers and other media that month, OPM Director John Berry stated this about what that paragraph meant:
“Gender identity is a non-work-related factor, and in the guidelines (to federal agencies) we will be making that clear. I made it very clear (in my answer to blogger Alex Blaze) that gender identity will be added and made very clear in our guidelines.”
What happened then was that the usajobs.gov website added this about discrimination against federal employees to its “How do I submit a complaint about discrimination in the application process?”
“A Federal agency cannot discriminate against an employee or applicant with respect to the terms, conditions or privileges of employment on the basis of race, color, religion, sex, national origin, age, disability, marital status, political affiliation, sexual orientation, gender identity or any other factor that is not related to job performance.”
The antidiscrimination guidelines that Director Berry promised regarding gender identity in June 2009 were released on May 27, 2011. The guidelines were released under the document title of Guidance Regarding the Employment of Transgender Individuals in the Federal Workplace. The guidelines address many aspects of trans people in the federal workplace, including transition while employed, confidentiality and privacy, dress and appearance, names and pronouns, sanitary and related facilities, recordkeeping and insurance benefits.
The sanitary and related facilities portion of the policy is probably the most important for those of us who aren’t currently government employees. That section of the guidelines addresses appropriate restroom use for trans federal employees. As it sets a standard for the federal workplace, it also sets an example of what the federal government’s take is on what best practices for trans people in non-federal workplaces should be.
From the guidelines:
“The Department of Labor’s Occupational Safety and Health Administration (DOL/OSHA) guidelines require agencies to make access to adequate sanitary facilities as free as possible for all employees in order to avoid serious health consequences. For a transitioning employee, this means that, once he or she has begun living and working full-time in the gender that reflects his or her gender identity, agencies should allow access to restrooms and (if provided to other employees) locker room facilities consistent with his or her gender identity.
“While a reasonable temporary compromise may be appropriate in some circumstances, transitioning employees should not be required to have undergone or to provide proof of any particular medical procedure (including gender reassignment surgery) in order to have access to facilities designated for use by a particular gender.
“Under no circumstances may an agency require an employee to use facilities that are unsanitary, potentially unsafe for the employee, or located at an unreasonable distance from the employee’s work station. Because every workplace is configured differently, agencies with questions regarding employee access to any facilities within an agency should contact OPM for further guidance.”
We have Mara Keisling and the staff of the National Center for Transgender Equality to thank for their input to the federal government, most of which was adopted by the OPM.
The release of these guidelines is, without doubt, the most important regulatory change on the federal level for trans people to date. The Obama Administration should receive great credit for this policy change.
It looks doubtful though that the Obama Administration is going to take public credit for this policy change. Given how controversial the sanitary and related facilities portion of the policy is likely to be with social conservatives, and how powerful social conservatives in the electorate are perceived to be by many in the Beltway, the release of these new OPM guidelines on the Friday afternoon before the Memorial Day weekend should tell us something.
And, something that it should tell us is that the Obama Administration wouldn’t be disappointed for the LGBT community to notice this policy change, but they’d prefer the mainstream, conservative and religious right media not to notice the change.
