Workplace Dress Codes and Transgender Employees
Dress codes should be modified to avoid gender stereotypes and should apply consistently to all employees.
Transgender employees may dress consistently in accordance with their full-time gender presentation.
If an employer has a dress code, it should modify it to avoid gender stereotypes and enforce it consistently. Requiring
men to wear suits and women to wear skirts or dresses, while legal, is based on gender stereotypes. Alternatively, codes
that require attire professionally appropriate to the office or unit in which an employee works are gender-neutral.
Employers can legally implement gender-specific dress codes as long as they are not arbitrarily enforced and do not
favor or affect one gender over another.[1]
Generally speaking, employers have a right to establish employee dress and grooming guidelines during work hours if
they are reasonable and serve a legitimate business purpose. Such purposes include:
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Maintaining a certain image with customers and competitors,
Safety, such as requiring employees to wear closed-toe shoes, goggles or gloves, and
Visibility, requiring employees to wear uniforms so that they are clearly recognizable to the public
(e.g.: law enforcement).
In the vast majority of cases, employers do not have the right to monitor or regulate employees' off-the-job conduct;
dress codes should not apply to activities outside of work. While some transgender employees may cross-dress outside
of work — including cross-dressers and employees considering or beginning the process of transitioning genders — the
employer should neither inquire about such activity nor take adverse action against such an employee should it learn
about off-the-job cross-dressing from another source.
From The Human Rights Campaign
As Transgender Employees Increase, Employers Need a Gender-Neutral Dress Code
Issues surrounding transgender rights within a workplace are moving more into the mainstream as the number of
transitioning individuals continues to increase. There is currently no litigation regarding dress codes, often found not
violative of Title VII, but Jen Cornell, Nilan Johnson Lewis employment & labor attorney, says this area has a high risk
for future litigation, and employers need to be educated and prepared. Cornell, who works with employers on the
defense of sexual and racial harassment claims, says it’s important companies develop a dress code policy with a
gender-neutral approach: “Employers might not know and don’t necessarily need to know if an employee is
transitioning, and a gender-neutral dress code would help avoid incidents of potential discrimination.” This issue poses
greater liability to employers following recent Circuit court decisions and the Equal Employment Opportunity
Commission’s April 2012 recognition that employment discrimination against an employee or applicant on the basis of
the person’s gender identity constitutes as sex discrimination contained in the Title VII of the Civil Rights Act. Cornell
says an altogether gender-neutral dress-code would be easier for employers to enforce, won’t need frequent updates,
shows that the company is being proactive, and creates a comfortable environment for current and/or future transgender
employees.
From Society for Human Resource Management
DRESS CODE ALTERNATIVES
Increasingly, school districts are adopting dress codes that do not differentiate
based on gender. This approach minimizes the risk of liability under the
First Amendment and other constitutional provisions, as well as laws prohibiting
discrimination based on sex or gender identity. While we strongly support dress codes that are gender
neutral, we recognize that some districts continue to have gender specific dress codes. Accordingly, the
model policy requires that students must be permitted to dress in compliance with the school’s dress code
consistent with their gender identity
from: National Center for Transgender Equality
Model District Policy on Transgender and Gender Nonconforming Students
BCP: Best Current Practices
What should we include in our EO policy to protect transgender workers?
Issue: In some workplaces, discrimination against and harassment of transgender workers can be a problem. Workers
may need to hide part of themselves at work. Workers who transition to another gender may be dismissed, harassed, or
otherwise suffer discrimination. Laws in some states and localities prohibit discrimination based on gender identity
and expression, but other states and localities do not have such a safeguard.
BCP: Include "gender identity or expression" to your EO nondiscrimination policy.
BCP: Prohibit not only discrimination, but also harassment, in your EO policy or a comparable document. Ensure that
"gender identity or expression" is included in lists of reasons not to discriminate or harass workers.
Dress Codes
Will my transgender worker need accomodation for our dress code?
Issue: Some employers specify a dress code that is different for men than for women. Workers who are transitioning
are required, prior to surgery, to assume the role for their new gender. This process is known as the Real Life
Experience. Part of that experience is dressing appropriately for the new gender role.
Since the medical processes take time, there may be some elements of gradual transition in their appearance. For
example, when piercing ears, the starter studs must be kept in place for 6 weeks, which may be noticed when a male-tofemale worker has not yet transitioned. A worker who has not yet completed electrolysis may have visible facial hair at
times.
BCP: Allow enough flexibility in the dress code to accommodate transition from one gender to the other.
BCP: Revise the dress code to avoid sex-specific requirements.
Sample Policy: "A transitioning employee's attire should remain professionally appropriate to the office in which they
work and the job they hold. The same dress codes and rules for behavior apply to transgendered as to other
employees. If, as a manager, you are concerned about the appearance your transgendered employee will present when
she or he starts coming to work in the other gender role, ask for a picture of her or him in professional attire. If you still
have concerns, these should be addressed with your employee. If she or he dresses or behaves inappropriately, this
issue should be dealt with the same way it would be with any other employee." [AMR]
Cross Dressing
What if a worker tells me he is a cross dresser, but does not want to transition?
Issue: Some transgender workers live as women some of the time and as men some of the time, in effect cross dressing
on a part time basis. This may be a transsexual who has not yet transitioned to full time, or a cross dresser who is
content with a part time gender expression. Such workers fear that discovery of their cross dressing, even when on
personal time, may lead to discrimination or harassment at work.
BCP: Cross dressing off the job is not related to a workers job performance. A person who cross dresses off the job
may feel safe if his or her employer's EO policy prohibits discrimination or harassment based on gender identity or
expression. (Usually the "gender expression" part is applicable to part time cross dressing.)
BCP: A worker who wishes to cross dress part time on the job is different from a worker who needs to transition on a
full time basis. Requests for part time cross dressing on the job should be addressed on a case-by-case basis. These
requests are rare and are often a step toward a full time transition.
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From Transgender at Work Project http://www.tgender.net/taw/about.html