“There are far more trans people out there than anybody knows,” says Ellen “Ellie” Krug — lawyer, Founder of Human Inspiration Works, LLC, and author of Getting to Ellen: A Memoir About Love, Honesty and Gender Change. “The reason that no one knows the real number is because people are afraid.”
In its study, Injustice at Every Turn, the National Center for Transgender Equality found that 90% of respondents faced harassment, mistreatment or discrimination in the workplace or hid their gender identity to prevent such treatment. Further, 1 out of 10 LGBTQ workers have exited a job that wasn’t accepting of LGBTQ individuals, per the HRC Foundation’s A Workplace Divided.
The workplace should never be a place of fear or inequality. And although the U.S. Supreme Court just ruled in June (see below) that employment discrimination protection extends to sexual orientation and gender identity, workplaces shouldn’t stop there. Creating an inclusive environment is a critical step for law firms in ensuring that their transgender lawyers, support staff and clients feel welcome and supported, and also in bolstering their well-being. Below are five steps firms can take to shape a more inclusive environment for the transgender community.
1. PREPARE TO INVEST IN CHANGE.
The 2019 Vault/MCCA Law Firm Diversity survey found that 1.93% of law firm partners (equity and nonequity) and 4.01% of associates identify as LGBTQ. This survey also revealed openly LGBTQ people make up only 2.08% of members on firms’ executive/management committees. Notably, transgender representation is just a portion of these already low numbers.
Increasing representation of transgender people within firms is an important step in creating a more inclusive environment, but to do so, firms must embrace change.
The workplace should never be a place of fear or inequality. Creating an inclusive environment is a critical step for law firms in ensuring that their transgender lawyers, support staff and clients feel welcome and supported.
“The key is you actually have to create a culture that is going to sustain,” says M. Dru Levasseur, Esq. — a transgender attorney who serves as Deputy Program Officer for the National LGBT Bar Association (including leading its LGBTQ+ inclusion coaching and consulting program, Lavender Law 365®). He formerly worked as the Transgender Rights Project Director for Lambda Legal. “The structural things firms can do have to be coupled with the idea that there has to be a culture shift inside,” he says.
A firm should not only examine its policies and programming but also try to gauge how its transgender employees perceive the workplace. It should also understand any potential biases that exist among cisgender — that is, not transgender — employees at the firm. Firms may consider distributing an anonymous survey or hiring an outside consultant to explore these areas. Firms can also implement comprehensive outside tools like Lavender Law 365®, which helps pinpoint best practices for specific audiences in the firm, such as targeting implicit bias, uncovering inequities with firm policies and identifying trends.
Importantly, firms need to accept the challenges inherent in becoming more inclusive. “Know that there might be a learning curve around this, and try to think outside the box,” says Levasseur, who recommends that firms connect with LGBTQ organizations to help develop best practices and navigate mistakes.
2. MAKE TRAINING PERSONAL.
There is no shortage of legal training opportunities, but when it comes to training on transgender inclusivity, the firm should have a formal program that incorporates transgender voices.
“If you bring in a trainer — which I highly recommend — bring in a transgender person,” says Krug. “You need someone who will come in and make sure the firm understands transgender people are human like everyone else.”
One useful training tool is to focus on commonalities. Commonalities establish the theme that transgender people are no different from and want the same things as everyone else, says Krug.
Krug also relies on human authenticity when she does trainings. As an exercise, she explores how people identify themselves and then challenges them to eliminate a certain aspect of their identity forever. This type of training helps people understand the idea of “choice” in relation to who you are and that transgender people do not, in fact, have a choice.
3. EVALUATE YOUR WORKPLACE POLICIES.
The way you shape your firm’s policies will have a significant impact on how supported and comfortable transgender people feel at your firm. One useful source is the HRC Foundation’s Transgender Inclusion in the Workplace: A Toolkit for Employers, which includes a detailed checklist to consult as you structure your policies and practices. Below are some areas to consider as you evaluate your firm policies.
Antidiscrimination policy: As the HRC Foundation’s toolkit indicates, firms should include antidiscrimination policies in their handbooks that cover gender identity. “That sends the signal that ‘we know transgender people exist,’” says Levasseur.
Insurance benefits: Firms should examine their insurance coverage to ensure it includes broad coverage for transgender people. “A lot of insurance companies still have what’s called a transgender exclusion clause,” says Levasseur. “Make sure your insurance plans don’t have an exclusion clause.”
Transition policy: A transition policy is another essential aspect of an inclusive environment. “Every firm should have in place in their HR manual that trans people are welcome — and nonbinary people as well — and have a protocol for what will take place if you need to transition or if the firm has hired someone who is in the process of transitioning,” says Krug. It’s important that firms allow for the transition policy to be flexible and personalized to each employee. The firm should also be proactive in offering support to the transitioning person. “Part of what I always recommend is you bring in someone who is transgender to assist HR and the person who is transitioning,” says Krug.
Restrooms: Sometimes, seemingly small policies can go a long way with building inclusivity, such as signage on firm restrooms. “If you have a unisex bathroom, it’s such an easy step to change the sign to say ‘All Gender Restroom,’” says Levasseur.
Pronouns: One action that can make a big difference is including a person’s preferred pronouns wherever that person’s name appears across the firm. In being proactive, the firm ensures that people are identified how they prefer without having to even request it. This practice also addresses two concerns from the ABA’s How to Be an Ally Program Toolkit: “Don’t try to guess someone’s pronoun” and “Don’t use the wrong pronoun — pronouns really matter.”
The firm shouldn’t stop at pronouns, however. Considering how you address others — especially groups — is critical. As the ABA’s How to Be an Ally Program Toolkit shares, always strive for inclusive, gender-neutral language (e.g., say “partner” instead of “wife” or “husband,” say “everyone” or “folks” rather than “ladies and gentleman” at events, etc.).
One useful training tool is to focus on commonalities. Commonalities establish the theme that transgender people are no different from and want the same things as everyone else.
4. HAVE A PRESENCE.
Firms that seek to be inclusive should not stand in the wings — outwardly showing your support for transgender people is invaluable. Krug suggests that firms support LGBTQ organizations and include photos on the firm’s website and in brochures. Also important is participating in industry surveys, such as the Corporate Equality Index.
5. RESPECT THE INDIVIDUAL.
As a firm strives to become a more inclusive workplace, it must be wary of putting too much pressure on its transgender lawyers and support staff to assist.
“It’s wonderful firms want to be inclusive places, but they have to consider that’s not why that trans lawyer is there,” says Levasseur. “They are there at the law firm to do a job, and their job is not to be a face of diversity.”
As the ABA’s How to Be an Ally Program Toolkit states, “Do understand that an individual’s LGBT status is only a very small part of who they are.”
Firms may face some speedbumps along the way, but with a strong commitment to inclusivity — even if that means major changes — and thoughtful planning, firms can make major strides in creating a supportive environment for transgender employees and clients.
On June 15, 2020, the Supreme Court of the United States ruled that Title VII extends to sexual orientation and gender identity. The Bostock decision may give the LGBTQ community more confidence about their rights in the workplace, but firms shouldn’t rely solely on the ruling and abandon their inclusion efforts. While this landmark decision was a big step forward for LGBTQ rights, it isn’t all-encompassing.
“I think [Justice Neil] Gorsuch was pretty careful to paint the opinion as a very narrow one,” says Ryan Thoreson, a Researcher in the LGBT rights program at Human Rights Watch. “He talks about hiring, employment and firing decisions and distances it from policies to do with dress code, bathroom or other policy decisions, though the opinion provides very strong support for plaintiffs who are bringing those cases.”
Firms should use this case as a call to action to be proactive and evaluate their policies. “I’ve been thinking about the case as an opportunity for employers to think about inclusion and how they can make their workplaces more inclusive,” says Thoreson. “That may mean that though the decision is framed as a narrow one, we should start thinking about ways to make our dress code more inclusive for employees or evaluate restroom policies, taking it as an invitation to rethink policy above and beyond the narrow confines of the opinion."
It’s also important that firms use this opportunity to make clear their nondiscrimination policy. “One of the things LGBT advocates have been stressing over the years is the importance of having explicit policies that signal that sexual orientation and gender identity are protected categories,” says Thoreson, who notes the importance of clarifying firm policies so the burden isn’t put on employees to make an affirmative case or for members of the staff to use their best judgment. “For firms that don’t already have those protections, laying them out to signal to employers and employees that these are protected is an important step to take.”
About the Author
Mary Kate Sheridan, JD, is a writer, editor and lawyer with a JD from Columbia Law School, an MFA in creative writing from The New School, and a BA in English from Mary Washington College. Previously, she worked as a litigator at a Vault 100 law firm.