Earlier this month, the Supreme Court announced that it had decided not to hear the case of Gavin Grimm – the transgender student who sued his school district seeking access to the restroom and locker room facilities that correspond to his gender identity. The Court’s change in course followed the Trump Administration’s rescission of an Obama-era Department of Education policy on the issue of bathroom access. Although Grimm’s suit involves public school students, private employers have been keeping a close eye on the case for any implications it may have on the rights of transgender employees in the workplace. The answer to that question will have to wait.
But, a dustup in the Supreme Court Clerk’s office shortly before the Court’s announcement highlights an issue that employers should keep in mind when it comes to transgender employees – the potential for pronoun problems.
Here’s what happened: Three groups that favor schools being allowed to require students to use the bathroom and locker room facilities that correspond to the gender assigned at birth filed “friend of the court” briefs in support of their positions. On the covers of their briefs, the groups listed the title of the case as “Gloucester County School Board v. G.G., by her Next Friend and Mother, Deirdre Grimm.”* The problem is that the official title of the case, as reflected on the Court’s docket, is “Gloucester County School Board v. G.G., by his Next Friend and Mother, Deirdre Grimm.” (Grimm identifies as male and uses the pronoun “he.”) The Supreme Court Clerk, Scott Harris, wrote to the groups to inform them that their briefs did not comply with Rule 34 of the Supreme Court’s Rules, which requires the cover of every brief “to reflect the caption of the case,” and he admonished the groups to “ensure careful compliance with this requirement in this and other cases in the future.” Some have suggested that the groups’ use of the pronoun “her” on the covers of their briefs was not a typo, but a deliberate choice not to refer to Grimm by his preferred pronoun.
What does this have to do with employers? Lately, a lot of attention has been paid in the national media to whether denying a person access to bathroom facilities that match their gender identity is discriminatory. Under Massachusetts law, employees are protected against discrimination based on gender identity, and transgender persons are specifically permitted under state statute to use restroom facilities that correspond to their gender identity. But, employers may not realize that they could be discriminating against transgender employees by failing to use the employees’ preferred pronouns.
There isn’t a lot of case law on this issue, but the Equal Employment Opportunity Commission has held that “supervisors and coworkers should use the name and gender pronoun that corresponds to the gender identity with which [an] employee identifies in employee records and in communications with and about the employee.” The EEOC has said that “[p]ersistent failure to use [an] employee’s correct name and pronoun may constitute unlawful, sex-based harassment if such conduct is either severe or pervasive enough to create a hostile work environment.” Likewise, the Massachusetts Commission Against Discrimination has found that an employer discriminated against a transgender employee by refusing to comply with his request to refer to him using male pronouns.
Employers need to exercise care and sensitivity in dealing with transgender employees, and those who are transitioning. Employment counsel, and organizations for human resources professionals, like SHRM, can provide guidance on developing and implementing policies and practices that ensure that all employees are treated with dignity, and to help avoid discrimination in the workplace and associated liability.
*Because Grimm is under 18, the case had to be brought by a parent. “Next friend” is the legal term used when a parent files a case on behalf of a child.