OPM Supports Transgender Feds in New Guidance

The federal government’s HR agency on Friday published new guidance tasking agencies with updating their policies to ensure that they afford a “non-discriminatory and inclusive” work environment to all employees, particularly transgender and other gender non-conforming workers.

The memo was published on International Transgender Day of Visibility, an observance aimed at celebrating transgender people and raising awareness about discrimination and other challenges they face. This year’s iteration comes amid a concerted right-wing effort to marginalize LGBTQIA+ individuals, as Republicans in state governments have advanced legislation targeting drag performances and blocking access to gender-affirming care, particularly for teenagers.

The document outlines how agencies should handle several sensitive matters related to when and how a gender non-conforming employee transitions their gender identity, including name and pronoun changes, privacy, bathroom access, leave usage for gender affirming medical care, and agency supports for transitioning workers.

Agencies should treat information about an employee’s gender identity or sex, including their sex assigned at birth, intersex status or medical history related to gender or sex, as “potentially sensitive private information,” particularly since information such as formerly used names is often collected during the security clearance process.

“For example, where the Privacy Act of 1974 applies, certain conditions must be met for disclosure of records contained in a system of records, and there are various other protections the agency would be responsible for implementing,” OPM wrote. “Even if there is not otherwise a restriction on disclosure in applicable law, regulation or policy, human resources personnel, managers and coworkers should be aware of the potential sensitivity of gender identity or sex characteristics information and, to the extent possible, are advised to avoid disclosing such information, absent the consent of the individual.”

OPM wrote that agencies should handle name changes for LGBTQIA+ employees the same way they would for cisgender workers, such as following a wedding or divorce. And agencies should not require a legal name change in order to recognize an employee’s preferred name or pronouns.

“All applicants and employees should be addressed by the names and pronouns they use to describe themselves,” the memo states. “Using correct names and pronouns helps foster workplaces free of discrimination and harassment. This practice also creates an inclusive work environment where all applicants and employees are treated with dignity. The isolated and inadvertent use of an incorrect name or pronoun ill generally not constitute unlawful harassment, but, as the Equal Employment Opportunity Commission has explained, continued intentional use of an incorrect name or pronoun (or both) could, in certain circumstances, contribute to an unlawful hostile work environment.”

If an employee changes their name or preferred pronouns, agencies should “promptly” ensure that those changes are reflected in “all electronic and physical places” where their name is displayed, including email addresses, virtual meeting applications, employee directories, business cards, etc., OPM wrote. And agencies should work to ensure the process for updating names is streamlined so that changes can quickly be reflected across IT systems.

OPM wrote that agencies should also ensure that federal employees all have ready access to whatever bathroom they feel most comfortable using, including single-user restrooms or “common facilities,” be they unisex or separated by gender.

“Agencies should not condition this access on an employee having undergone or providing proof of any gender affirming surgeries or other medical procedures,” the memo states. “Agencies should not limit an employee to use facilities that are located at an unreasonable distance from the employee’s work station, or inconsistent with the employee’s gender identity. Agencies should not restrict any employee to a single-user facilities instead of common facilities; agencies can, however, make a single-user facility available to all employees who might choose to use it.”

The guidance tasks agencies with setting up new policies to support employees as they undergo a gender transition. Agencies should designate a human resources employee to serve as a “central point of contact” to work with any transitioning employee who requests support, and set up a system by which employees can tailor how they transition in the workplace.

“The procedure could include, with the transitioning employee’s input and consent, when and which colleagues to notify of a transition; the timing for name changes and pronoun changes, where applicable and consistent with this guidance, in email, IT systems and employee profiles; and a process for any gender identity inclusion training for supervisors, managers and coworkers if such training would be beneficial,” OPM wrote.

OPM also reiterated that employees receiving medical treatment as part of their transition may use sick leave, “just as with medical treatment for any other reason.” Additionally, agencies should review and, if necessary, update their policies governing employee attire to ensure that all employees are allowed to dress consistent with their gender identity and that those employees have the ability to decide when to start presenting consistent with their gender identity.

“As an employer, the federal government must strive to maintain standards of equity and value the diversity of employees’ backgrounds, identities and experiences,” said OPM Director Kiran Ahuja in a statement. “This updated guidance is aimed at achieving this goal and ensuring that federal workplaces are safe, respectful and productive work environments.”