Trump Erases Guidance for Transgender Federal Workers — Here’s What You Need To Know
Guidelines for supervisors of transgender employees in the federal government went mysteriously missing over the Thanksgiving holiday. Here’s what the changes mean — and do not mean — for transgender workers.
In the middle of the Thanksgiving holiday last week, the Trump administration took yet another reckless effort to erase the rights of transgender people.
The Office of Personnel Management — the main human resources agency of the entire federal government — gutted an important policy that helped protect the rights of transgender federal employees. While the old page provided supervisors with clear guidelines for creating respectful and affirming workplaces, the new website removed much of that language including content about name changes, pronoun usage, and restrooms.
Like past Trump Administration changes to the websites of the Departments of Housing and Urban Development, State, and Health and Human Services, these most recent changes by OPM do not change or limit the legal rights of transgender people — they merely spread misinformation and confusion about what those rights are. In an effort to fight against the administration’s efforts to undermine the law, we wanted to answer a few questions people might have about the changes at OPM:
What is OPM?
The Office of Personnel Management (OPM) is the main human resources agency for federal workers. They make policies about workplace conditions, benefits, and other key issues affecting federal workers. Because the federal government is the largest single employer in the country — employing a total of 2.7 million people, or close to 3 percent of the nation’s entire workforce — OPM has untold power to shape the employment landscape for workers across the country.
What did the Trump administration do?
The Trump administration removed from OPM’s website practical guidance for federal agencies that was put in place in 2015. The guidelines summarized best practices for federal agencies after President Obama signed Executive Order 13672, which prohibited discrimination against LGBTQ workers in the federal government.
The old version of the website listed clear guidelines for federal agencies to respect the privacy and rights of transgender employees, including how to handle dress codes, names in official records, and access to gender-specific spaces such as restrooms or changing rooms.
Last week, the Trump administration erased much of that language, substituting vague language implying that managers should not respect an employee’s gender identity and encouraging discrimination on the job.
Most egregiously, the new guidance tells agencies that when job positions or duties have to be assigned according to gender, they should assign employees according to their “biological sex” — even though courts have said that failing to respect an employee’s gender identity is illegal discrimination against transgender workers. That means that in some cases agencies might actually be forced to choose between complying with the law and complying with this new guidance.
What was this guidance?
This document provided federal agencies with guidelines about how to treat transgender employees fairly and make sure that they are protected from discrimination in accordance with federal laws, regulations, and Executive Orders. It answered key questions about workplace issues like respecting an employee’s name and pronouns, access to workplace restrooms, protecting employee privacy, and and answered key questions in order to make it as easy as possible for agencies and employees alike to navigate through the process.
The guidance document reflected decades of federal case law, OPM regulations that prohibit anti-transgender discrimination in federal workplaces (and which are still in place), and a landmark executive order signed in 2014 by President Obama prohibiting discrimination against federal employees because of their gender identity. OPM regulations continue (for now) to reflect the position — consistent with the holding of the vast majority of courts to have considered the question — that transgender employees, including federal employees, are protected from discrimination under Title VII, a federal law that prohibits workplace discrimination based on sex.
What does the Trump administration’s actions mean for transgender employees?
This change to OPM’s website doesn’t change a thing about federal workers’ legal rights. But this is yet another callous step by the Trump administration to sow confusion and undermine the rights of transgender people, including federal employees.
Transgender federal employees are still protected from discrimination under federal law. The 2014 executive order prohibiting anti-LGBTQ discrimination in the federal workplace is still in place.
Transgender federal employees are also protected from discrimination under Title VII of the 1964 Civil Rights Act, as well as the Equal Protection Clause of the Constitution (which prohibits discrimination by the government).
Withdrawing this practical guidance, however, is likely going to cause confusion, especially since it takes away practical instructions and interrupts procedures that have been successfully implemented for a long time. It may mean that agencies or HR staff will be unsure how to treat transgender employees or will think — incorrectly — that they are allowed to discriminate against them.
What do I do if I’ve faced discrimination in a federal workplace?
If you’re a federal employee, remember that you are still protected from discrimination. You can find guidelines for filing a discrimination complaint here.
What else is the Trump administration doing to undermine the rights of transgender workers?
This is just one of many things that the Trump administration is doing to attack transgender workers. For example, the Department of Justice issued a memo last year saying that transgender workers aren’t protected under Title VII, even though that contradicts what courts have repeatedly said.
Last month, the Department of Justice also urged the Supreme Court to overturn protections for transgender people under Title VII. And just this week, it told the Supreme Court that allowing transgender people to serve in the military — something that has been successfully implemented for more than two years now — is such a dire threat to the military that the Court needs to short-circuit the legal process and allow them to enforce their ban.