Dr. Jillian T. Weiss

Changing Trans Employee Name and Gender In Corporate Records

Filed By Dr. Jillian T. Weiss | November 14, 2011 1:00 PM | comments

Filed in: Living, Transgender & Intersex
Tags: gender change, gender confirmation surgery, sex reassignment surgery, SRS, transgender name change, transsexual

As an attorney and professor specializing in the employment issues of trans employees, I am often asked what organizations should do, when facing an employee transition, about records showing a different name and gender.

Certainly, the employee database, business cards, wall and desk placards, email and voicemail information should be updated with the new information. One problem, however, is it may not be possible to change all personnel and administrative records. If the employee has been with the organization for a long time, there are years of previous records, which would be burdensome to change. This can be a difficult administrative problem to address.

A less onerous suggestion is to change the company database to reflect the new name and gender prospectively for the future only. This could, however, result in a discrepancy in the future, causing inquiry and some distress to a transgender employee. Some thought should be given by the organization to which records in its particular system are most likely to pop up later on.

Changing of name is a fairly routine matter because organizations are used to changing names when women get married or divorced. I note, however, that some organizations routinely request a court order for the purposes of changing a name. This causes problems for those US states that will not easily give a court order to change a name from one which is stereotypically male to one that is stereotypically female, or vice versa. The workaround for this is the general recognition in the law that a court order is not required in order to use a different name. Rather, the court order simply acknowledges an individual's use of a different name.

With concerns about security on the rise, however, many organizations are ignoring this common-law rule in favor of requiring a court order. I recommend that trans employees work with their HR departments to ensure that, where a name change order cannot easily be obtained, the common-law rule be used as an appropriate alternative.

Even more problematic, however, is the fact that only two US states (Texas, interestingly enough, is one of them) will give a court order recognizing a change of sex, albeit for limited purposes. A change of gender is much more problematic administratively than a change of name. The gender change on the company's database will cause a discrepancy when it does not match the database gender marker on other systems. For example, unless and until the employee changes the gender identity marker on the Social Security account, insurance plans, pension plans, security classification, professional licenses, etc., the discrepancies may trigger an inquiry. In addition, there is no universal document that will satisfy all organizations to change the gender marker. (See, for example, my article on problems with submission of medical claims to insurers in the Journal of Controversial Medical Claims.)

For example, Social Security Administration rules changed several years ago to require sex reassignment surgery for change of gender marker on the SSA account. This is a problem for some transgender employees, because the medical standards of care call for living in the opposite gender for at least a year prior to receiving permission for sex reassignment surgery. There are stories out there about SSA contacting employers about the gender mismatch, causing some distress for transgender employees.

Fortunately, the federal government recently changed its rules so that no-match letters are no longer a threat to trans employees.

One legal department that I know of raised the concern that changing the gender marker before SSA approval could cause a loss or interruption of benefit accrual to the individual's social security account. I spoke to Christopher Daley, an attorney, about this point some years ago, while he was director of the Transgender Law Center (TLC), which provides legal services to hundreds of transgender people and their families each year. TLC has worked with many transgender people whose birth-identified gender marker on their SSA account conflicts with the corrected gender marker on their employers' records. To his knowledge, this particular inconsistency has never resulted in loss of benefits for any of the Center's clients. I also have never heard of any problems regarding this, and it is not a valid objection to effectuating a name and gender change in the employer's records.

Some employers have inappropriately asked trans employees for confidential medical information regarding their surgical status. Sex reassignment surgery (or gender confirmation surgery, as some call it) should be a criterion for recognition of gender identity. "Sex reassignment surgery" refers to surgical procedures intended to assist in transition from one sex to another.

The use of SRS as a factor is inappropriate because there are numerous types of SRS, which vary in their effectiveness and appearance. Such a requirement would require the employer to assess proof regarding specific details of the employee's medical history and treatment. This is problematic because such questions may impact medical privacy laws, which differ by jurisdiction.

The use of SRS as a factor is also inappropriate because it may create the perception that the employer endorses, condones or regulates its employees' decision to undergo gender transition. This is undesirable for reasons including employee relations, public relations, insurance coverage and potential litigation. It is best for employers to stay out of the employee's medical decision-making.

SRS also does not address all objections to facilities usage, such as bathrooms. The standards of care of the primary medical organization in this area (www.hbigda.org) require successfully living as the opposite sex for a year or more prior to medical approval for surgery. Therefore, it is likely that an employee in transition will not complete his/her medical treatment for a substantial period of time. Furthermore, bathroom usage does not generally involve public viewing of nudity. Therefore genital surgery is irrelevant to the facilities usage determination and, by extension, to a determination of gender identity on employer records.

The bottom line is that, while name and gender changes present some administrative challanges to employers, these are solvable, and should not present a barrier to respecting the name and gender of those who transition on the job.

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I know I am missing something here, but if you are transitioning while staying at the same company, what is the big deal with inconsistency in records? Everyone knows about your past anyhow. Now, if you start a new job in the middle of transitioning, or after, then it makes me sense to worry about your records.

I lost a comment here. The following may be more or less awkward than what I wrote before. I am strongly opposed to many of the things you infer by the way you reason in your O P, Dr. Weiss. I have very limited time to clearly and concisely present what it is I strongly object to, however.

Genital sex reassignment surgery is significantly different than any other kind of surgery associated with making a person's transition into a gender role smoother after sex reassignment.

People's genitals are inspected at birth.

If a person has sex reassignment surgery it is not unreasonable to ask a person for documentation that someone has had a genital sex change because everyone provides that evidence when they are born.

Sex designations are almost exclusively based on on genitalia. Only in extreme cases of genital ambiguity is there an exception to this rule. People who have a transsexual history should not be subject to discrimination on the basis of their transsexual history. Their sex should be designated the same way everyone else's is. People defending the rights of people who have transsexual histories should see to it that they are not discriminated against on the basis that they are any less human females or human males than anyone else based on other characteristics such as skin color, eye color, or any sex characteristics that do not conform to their genital characteristics.

Penectomy is not equivalent to vaginoplasty. The differences regarding sex function and designation is a significant one. A person who undergoes penectomy, for whatever reason they might does not undergo sex change. Vaginoplasty should never be dismissed as penectomy.

Regardless of whether a person has had a sex changing SRS surgery, or not, it does not qualify them to speak to the significance it has for others. Also, identity is an objective matter as well as subjective matter.

The question of whether there is a need for gender markers on identity documents is a very valid one. Regardless, it has nothing to do with how a person's sex has been designated throughout history. A gay person, a lesbian, an intersex person may be discriminated against on the basis of gender expression. A person of transsexual history may be, too. The need for protections against discrimination is great. The fact that it may include people of transsexual history does not make the need to have a person's reassigned sex protected from being discriminated from those who were assigned their sex at birth any less significant than it is for a lesbian where it may or may not have been asserted she is not truly a woman or a gay man that he is not a man. Anyone not working to have a person's sex reassignment recognized on the basis of the way the general population's sex is recognized is not working for protection against discrimination of people with transsexual histories, regardless of what they have done in relation to protections against discrimination based on real or perceived expressions of gender.

If there are laws, attitudes and prejudices that exist that present obstacles to people of transsexual history from being discriminated separately from those of their reassigned sex the solution is to work to have all that changed, not to validate laws based on prejudice and ignorance .

Edith, my issue with a requirement for documenting an SRS is that A) it has no bearing whatsoever on whether or not the employee can perform the job, and B) the anti-discrimination laws in this country preclude even asking an employee what sex he or she is (if I understand the law correctly). The requirement you are talking about would make an exception to the law, for no purpose other than to discriminate against transgender employees.

I don't know where you are going with this Pamela. If, in all cases, it does not matter what sex a person is, all people - all people being defined as people, as in human beings, as in every human being on the face of the earth, fine! I can think of one case, the proposed ENDA, where people have made a distinction based on sex. If a distinction is made on the basis of sex, any distinction, anywhere, anytime, then it would be discriminatory to have a class of people excluded when their most significant sex defining characteristic conforms to but does not define them the same way everyone else's most significant sex characteristic defines, them, that is, their genitalia.

If it is advisable to change the way sex is assigned, then change it for everyone. Until things are changed for everyone, everyone's sex should be assigned the same way and people should be segregated and share the same rights and responsibilities based on their respective assignments.

Basically this comes down to sex segregated facilities. If exceptions should be made it is an issue separate to how a person's sex is assigned.

Sex does make a difference. I ran into this problem with my life insurance. Massachusetts Mutual agreed with me that I should be entitled to female rates under any new contracts entered into post sex reassignment. That is an issue of legal discrimination, one they had never encountered before. People are discriminated on the basis of sex, legally even if I can't think of every possible example off hand. Sex reassignment is a serious issue. How someone's regret factors into any of this should not be a consideration. If you don't want to change sex, no one is forcing anyone to do so. An adult should be able to decide what their needs are and whether they're mature enough to accept the consequences. Sense of self is only one aspect of a person's sex/gender. There are physical aspects which any reasonable person cannot disregard.

Cool an article and comments I can chew on.
OK, to start with it is incumbent upon the customer employee to clearly communicate their needs to their HR representative. It is best to do so in person and in writing. In small companies hiding your past IS impossible. In large companies/corporations your past can be hidden up to a point. While stealth is something that many strive for, sadly many times remaining in a company can expose your past.
Where I’m at, the various processes that are in place to assist Transgender employees are pretty well written. But, what I’m seeing is that an electronic record ghosts in the system following the person with a person’s former identity showing up right next to their current identity in the global internet listings. It’s been noted as a problem.
As for transitioning at work, one of the ground rules I asked to be put in place was that the only surgery that needs mentioning is Facial Feminization Surgery (FFS). Part of that is because I do work at a corporation that is a primary defense contractor and everyone has to have a current photo ID. But the real impact is the fact that everyone I’ve seen who has undergone FFS has such a dramatic change in their face that they CAN walk right past people who’ve worked closely with them for year simply cannot recognize them. SRS, BAS, Top Surgery and Bottom Surgery affect parts of the body that are typically covered and not seen. (Unless you do work in an industry that requires you to be partially or fully nude)
I still find it somewhat humorous that some of my friends actually have thought “I can go get full blown FFS and go back to work and no one will notice.” Providing documentation of any medical nature to ‘the company’? If you have a medical department that holds medical records on you, that would be the ONLY entity at the workplace to be privy to such knowledge. HR has no real use or legal reason to even see such paperwork. You update your driver’s license? Passport? Birth Certificate? Update your HR data from that. Those are the OFFICIAL LEGAL records of your identification. ..and if anyone asks to take a photo of your top or bottom post-surgery, hit them with a sexual harassment case as hard as you can because that what it is.

I have read the O P and my replies over and over a few times. I realize that is difficult to understand what it is I object to. I do not know whether it is legal for an employer to ask a person to fill a box and answer what their gender or sex is. There is a lot of context here. I read most of Dr. Weiss' posts, particularly those having to do with legal issues regarding transgender people and people with transsexual backgrounds. I won't use the term trans because there are significant differences between the two groups.

Carol makes a valid point about people transitioning and how their medical history will inevitably become obvious, privacy concerns, notwithstanding. Eventually, most post transitioned people's privacy will be compromised in one way or another. I think it is rather disingenuous to assert that the most significant issues facing transsexual people, either post or in the process of transition, and transgender people revolves simply around the issue of privacy.

Very recently, Dr. Weiss touched on similar issues in her post titled, Cal Baptist Expels Transgender Student. I don't think I disagree with a lot of what Dr. Weiss has to say either in this post or the Cal Baptist post. As true as that is, I find a lot of problems with the way Dr. Weiss looks at these various issues and the premises she bases many of her conclusions on.

I cannot copy and paste from the pdf Dr. Weiss links to in the Cal Baptist post


but things are presented here in ways that indicate where the starting point is in the way these various issues are approached. The way the word "penectomy" is used in a place where one would expect a reference to vaginoplasty seems very telling. For someone who has undergone vaginoplasty, it is an offensive characterization if that is what is implied, which seems to me very difficult to conclude any other way. What is written here, in the particular post I am replying to, cannot be understood without regard for what Dr. Weiss has written elsewhere. For someone who has had a penectomy who is not transsexual, whether because of disease or an accident, a characterization, where a penectomy is associated with a sex changing surgery is offensive. I spent a little time reading about penectomy after Dr. Weiss wrote the the Cal Baptist post. Men who have undergone penectomy are still able to experience a lot of the male functions they performed and enjoyed before penectomy. I think a lot of time could be spent where this kind of understanding is involved as it concerns transsexual people. It would begin with the issue of BIID but it wouldn't end there. The offensiveness of such characterizations of vaginoplasty is very obvious to me.

It is subtle but if one reads between the lines in Dr. Weiss' post today there are a lot of inferences being made. This sentence, I believe, is key to the way Dr. Weiss reasons where all these issues are concerned

Sex reassignment surgery (or gender confirmation surgery, as some call it) should be a criterion for recognition of gender identity.
Dr. Weiss seems to consistently make the point that "gender identity" takes precedence over any other factor having to do with a persons gender. This is complicated by two, things, at least. First, there is a difference between gender and sex. The fact that there is a difference reveals itself in the contradictions involved in the proposed federal ENDA which she expresses strong support for, where segregation in shared public spaces involving full nudity is based on whether a person has had a gender transition, or not without acknowledging the significance of genital sex reassignment surgery. The fact that there is such a distinction written into the proposed legislation and that there is support expressed for such a distinction is an acknowledgement that one agrees that one's sex reassigning genital surgery is inconsequential which is a theme that runs through all of Dr. Weiss' writing. Such a position is problematic for many reasons.

I have no desire to get into this but there is a significant body of writing, the greatest part of it coming from academics with legal credentials presenting enormous challenges to anyone who can see the obvious facts regarding the way sex is assigned and the significance of one's genitals in relation to a person's sexual functions and what it means to be discriminated against and the way society is segregated. It so difficult to articulate valid objections to Dr. Weiss' arguments and the arguments presented by many of the major organizations who are staffed by professionals working full time to discriminate between post transsexual people and those of the sex we should be recognized as on the basis of sex recognition that is simply taken for granted by those who would otherwise be recognized except for the fact that they have transsexual histories. The difficulty involved in articulating all of this when one's time is limited is extremely frustrating. It isn't any wonder why tempers flare. There is so much at stake.

People are not assigned a sex based on their "gender identity". The issue of gender identity, a relatively new concept basically invented by Robert Stoller is such a loaded concept. The assertions made regarding that SRS procedures include things like breast augmentation and facial feminization surgeries actually present problems by asserting that a face or someone's breasts should conform to a gender stereotype. Typical feminine features may be the result of someone's physiology but those features have no effect on physiology. Genital surgery does. Also, genital surgery changes a person's ability to perform in sexual relations. It is too much of a stretch to assert that ffs or breast augmentation is equivalent to transsexual surgery. The assertion that procedures that do not affect physiology and function are equivalent, also, create a distraction when discussing SRS, which usually conjures up the more accurate image of transsexual genital and gonadal surgeries by creating the pretense that sex assignment and reassignment is much more complex than it actually is. Biometric profiles are not required at birth when assigning sex. Later in life no one's sex is ever verified by biometric profiling

There are so much contorted reasoning involved here. It makes it very difficult to contend the numerous assertions embedded in the way these issues are presented by the most prominent LGBT activists.

I don't really have the time for this. It seems the only alternative to time consuming attempts to appeal to reason is to do what other people do who object to all this "gender" based activism which inevitably ends up being caught up in contradictions as a result of the realities of sex/gender distinctions and

One more significant correction to the reply I made @ 11/15/11 12:39 a m. I wrote:

". . . professionals working full time to discriminate between post transsexual people and those of the sex we should be recognized as on the basis of sex recognition that is simply taken for granted by those who would otherwise be recognized except for the fact that they have transsexual histories."

should have been more like:

" . . . professionals working full time to discriminate between post transsexual people and those of the sex we should be recognized as on the basis of sex recognition that is simply taken for granted by everyone except for those with transsexual histories. There is no good reason to make exceptions for us."

I have a couple of prominent corrections to make. At the end of my first reply I wrote:

"If there are laws, attitudes and prejudices that exist that present obstacles to people of transsexual history from being discriminated separately from those of their reassigned sex . . . "

was meant to come out more like:

"If there are laws, attitudes and prejudices that exist which present obstacles to people of transsexual history and cause them to be discriminated agains by segregating them from those of their reassigned sex . . ."

In my last reply this sentence is a direct quote from Dr. Weiss' O P:

"Sex reassignment surgery (or gender confirmation surgery, as some call it) should be a criterion for recognition of gender identity."

It was intended to stand alone as a blockquote. I don't know what happened. It ended up being merged into what became the third paragraph after the link I copied and pasted from Dr. Weiss' Cal Baptist post.

I don't know who will bother to read any of this but things are confusing enough to begin with without unnecessarily adding to it all.

Employment? What's this? As An older Trans person, I just really don't get this! I tried to be employed...I really did, but you know, that 'ol pesky Transsexual diagnosis pretty much did away with any opportunity to do so. Other than a Brief stint with the GLBT center here in Denver, the last time that I was seriously employed has been over twenty years ago. The GLBT Job was very obviously a token position...only for the purpose of being able to state that they had a Trans employee. I quit after a month of being ignored! Typically ( I do hope things are changing)back when I was first diagnosed as being trans, I was also labeled as "mentally ill", and placed on disability payments. Full term scholarship to medical school gone in one fell swoop! Ahh, the life of an older trans person...Oh well!