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Gender identity discrimination statutes are on the rise, and employment and HR professionals need to get up to speed on this emerging trend.

But first things first. What is “gender identity”?

Gender identity is a term that refers to a person’s belief about whether they’re male or female – it’s not related to how someone appears physically. It’s also not about a person’s sexual orientation. Rather, some people do not believe that their real gender identity corresponds to their biological sex – for example, someone may appear to be male, but they believe they’re female. These individuals are commonly referred to as “transsexual.”

For those of you in states like California, Minnesota, Rhode Island, and New Mexico, these growing protections for gender identity may seem long overdue. But change takes time and in some cases (and states), it just takes a little longer.

Many states already prohibit sexual orientation discrimination. Last count, there were about 20 states and the District of Columbia, and about 100 or so cities/municipalities. But gender identity discrimination is different, and the protections have expanded at a much slower pace.

But the tide seems to be shifting. Since Democrats took control of Congress, the ENDA (Employment Nondiscrimination Act) has resurfaced. This federal law would prohibit sexual orientation and gender identity discrimination in employment. We’ll see how much momentum it gains in the next few years …

Number of State Statutes Nearly Doubles in Last 6 Months

More notable, however, is the number of states that have adopted or amended laws prohibiting gender identity discrimination in employment – and in just the past 6 months.

The list below is by no means authoritative. Check with your lawyer to confirm state law – some states have case law or other executive rulings that apply to gender identity discrimination.

The most recent state legislative activity includes:

• New Jersey (late 2006): passed a law that will be effective June 17, 2007.
• Oregon (April 19, 2007): law expected to be signed by the governor and be effective January 1, 2008.
• Iowa (April 25, 2007): law expected to be signed by the governor and be effective July 1, 2007.
• Vermont (May 3, 2007): law expected to be signed by the governor and be effective July 1, 2007.
• Colorado (May 4, 2007): law expected to be signed by the governor and be effective August 2007.

A handful of other states are considering legislation right now, but have not yet passed laws. These states include: Connecticut, Indiana, Michigan, Massachusetts, Montana, New York, and Pennsylvania.

Full-blown statutory protections mean that your employees can sue if they are victims of harassment or discrimination based on gender identity. Even if your state or local city has no law, some courts (even federal courts) allow gender discrimination claims based on failure to conform to gender norms. (For example, a male employee being teased because he is too “effeminate.”) So in some sense, most employers are already touched by this emerging legal trend.

Employers Need To Get The Word Out

It is estimated that 2-5% of the population are transgender. By those numbers alone, some of your employees are members of this group.

And those employees who are not in the 2-5% group rarely understand the issues and needs of transgender employees – and some can be down right cruel. Don’t underestimate what employees are capable of saying or doing. Just consider the horrible experience that Largo City, Florida Mayor, Steve Stanton had when he announced his desire to have a sex change – he was insulted and FIRED (after 14 years on the job).

Without a doubt, this is an area that screams out for employee education. Few people understand gender identity, or how to respectfully integrate transgender employees into the workplace. And my experience is that many employees feel free to speak their minds (regardless of how disrespectful they may be) when it comes to this issue.

If your employee’s don’t understand the basic issues, you shouldn’t be surprised when they don’t understand how to act properly at work. So for the sake of your organization, and your employees, tackle this emerging trend head-on.

• Update your prohibited harassment policy if it doesn’t already include gender identity discrimination. (check out the organizations that prohibit gender identity discrimination by policy).
• Train your managers and employees. Give them facts and information, and remind them that the organization’s values of respect and inclusion extend to transgender employees.
• Make sure that HR understands how to help integrate transgender employees into the workplace smoothly. Some of their needs and concerns are unique – such as restroom use.
• Hold all employees accountable for disrespectful conduct.

Stay tuned for more news on gender identity protections … This is a trend that is only going to continue to gain momentum.