Question: An employee’s Social Security number identifies the individual with a distinctly female name, but he clearly identifies as a male. How do we handle this in terms of documentation and employment administration?
Answer: Documenting transgender workers requires common and straightforward processes. All legal documents where a Social Security number is affiliated (payroll, workers’ compensation, benefits, Form I-9, etc.) must reflect the name represented on the employee’s Social Security card.
Under current Social Security Administration (SSA) policy, transgender persons can change their gender on their Social Security records by submitting either government-issued documentation reflecting a change, or a certification from a physician confirming that they have had appropriate clinical treatment for gender transition. If and when an individual’s name is changed on a Social Security card, the employer may update applicable records to reflect the new name.
Unlike other diversity categories, such as race and gender, employers are not required to collect statistics on the number of LGBT people they employ. Whether an employee discloses their gender identity or sexual orientation is optional and voluntary and any reporting or direct access to the data is designed to ensure confidentiality of the employee.
Keep in mind that laws regarding changes to gender markers in credit reports and government-issued identification documents vary from state to state and jurisdiction to jurisdiction. As with the SSA, many jurisdictions require proof of completion of specific medical procedures before personal documents — such as drivers’ licenses and birth certificates — can be updated to reflect a person’s new gender. Additionally, when evaluating whether to ask employees about gender on non-essential forms, employers should consider:
- What is the business rationale for asking about gender on the particular form?
- How does asking for the data relate to your organization’s overall diversity strategy?
- How will that data be used, protected, and reported? What legal restrictions might there be on collection or storage of demographic data, in the United States or globally?
If the data is not essential, consider removing the question, make sure the question is clearly optional (particularly for online forms), or allow people to self-identify by asking an open-ended question (such as “state gender preference”).
All other documents, business cards, nameplates, general interaction, and correspondence (such as company directories) should reflect the individual’s chosen name and not necessarily an individual’s legal or birth name.
It’s important to note that under EEO-1 reporting requirements, employees are permitted to self-identify ethnicity, gender, disability, and veteran status. Transgender individuals should be able to select the gender with which they choose to identify. As to those who may refuse to self-identify, the Office of Federal Contract Compliance Programs (OFCCP) has stated that the employer can use visual identification to designate these employees as either male or female for purposes of completing the EEO-1 form (similar to employees who choose not to self-identify as to race/ethnicity). In your case the individual is identifying as male and should therefore be identified as male on your EEO-1 report in accordance with his rights and your responsibilities under Title VII, as well as recent regulatory changes and guidance at the federal and state level.