No doubt you’ve been following what’s been happening in North Carolina (and Mississippi, and Texas, and so on). But try getting ahead of the game by looking at the UK’s foibles.
On Monday lawsuits start slinging back and forth between the politicians in Raleigh and those in Washington, D.C.: The Department of Justice warned the state’s legislators that they believed HB 2, the new law that amongst other anti-LGBTQ sentiments prohibits transgender people from using the bathroom that matches their gender identity, was in violation of Titles VII and IX of the Civil Rights Act. The state responded by filing a lawsuit against the DOJ to defend HB 2.
Though the DOJ isn’t speaking from a place with specific transgender protections, they’ve got a wealth of court decisions and federal interpretations backing them up. Overall it seems the tide is in favor of protecting transgender workers, even if there’s no formal law doing so at this time. Which means employers who want to remove the headache and stay ahead of the game would be smart to make sure their workplace policies are trans-friendly. And though potty politics are a big part of that, that’s not the only place to double check in your employee handbook.
“It’s still legal in the UK for a company to require female members of staff to wear high heels at work against their will,” reads her petition which as of writing had 109,628 signatures of the 100,000 needed. “Dress code laws should be changed so that women have the option to wear flat formal shoes at work, if they wish. Current formal work dress codes are out-dated and sexist.”This week a London receptionist made headlines after being sent home for refusing to switch out her flats for a pair of 2-4 inch heels for her job at finance company PwC. The final straw for the woman, Nicola Thorp, came when she pointed out that her male colleagues were not expected to show up in high heels and her new colleagues laughed at her. When Thorp found that women on her Facebook page had experienced similar situations she didn’t stop at social media. She took a petition to the UK government, to make circumstances a bit more fair.
Thorp is a little off in her phrasing here; there’s no statutory law that deals with dress codes. Most dress code issues are taken (in both the UK and U.S.) on a case-by-case basis, with employers expected to make “reasonable requests” with their dress codes. But taking into account all the damage high-heels can do to a body (sometimes permanently) she’s not wrong that insisting women employees show up in heels has some air of sexism to it. And the notion of a gender-binary dress code also opens some dangerous doors for employers in terms of how they treat transgender and gender non-conforming employees.
As Annie Neal wrote for Bass Berry & Sims Labor Talk back in 2011, such policies may not withstand scrutiny of gender identity protections:
However, an increasing number of states and cities have enacted laws that protect an individual’s “gender identity” and “gender expression.” In these jurisdictions, an employer may maintain dress standards; however, they must allow employees to appear, groom themselves and dress consistently with their gender identity or expression. Gender identity and expression have a subjective element and are not tied to an individual’s sex at birth. This essentially means that if a person looks like a man, for example, but identifies [themselves] as a woman, the individual may be entitled to dress like a woman.… In summary, if a state or local law protects gender identity and/or expression where your company is operating, you should beware to enforce the dress code in a way that imposes stereotypical appearance standards regarding gender.
And the truth is the nitty-gritty of HB 2 would reach beyond the bathroom stall and into how a gay and/or transgender employee operates in the office. Someone could be fired for identifying (and as such, presenting) as transgender. But given the uphill battle the new law faces at the courts (even with a conservative judge), not to mention the reportedly $5 billion a year it could cost the state, there aren’t many who expect HB 2 will be long for this world in its totality. And though workplace policies aren’t evolving as fast as other areas, gender identity as a protection seems likely to stay. If you don’t want to make changes down the road, keep gendered dress codes out of the equation.
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