EXPERT INSIGHT 58 WWW.LAWYER-MONTHLY.COM | APR 2022 training on non-discrimination, nonharassment and inclusion in the workplace. Staying ahead of who is included for protection is not always straightforward given the ability of individuals to self-identify. How can an attorney help transgender people gain the employment rights they deserve? Transgender legal rights in employment have been established within agencies and courts. What seems to be playing out in public eye now is the political and social adjustments that must inevitably come with this expansion of the scope of employment law protection. We must never forget that what is legal, moral or ethical does not always line up. Consequently, this may be a time in which “less is more”, meaning employers should understand that an individual’s transgender status is simply a topic like race or sex that cannot be considered when making employment-related decisions. Attorneys for employers need to advise their clients accordingly. In truth, employer and defense attorneys have the greatest opportunity to prevent issues before they arise. Employee and plaintiff attorneys should also keep in mind that working through problems as opposed to running straight to the courthouse (or agency) is not always in their client’s best interest. “The battle avoided is the battle best fought”. Of course, when law and fact issues collide, agency processes and courts are always available. The preferred use of pronouns is going to be an issue until a new normal is established. It reminds me of my days in university and law school when expressions such as he or she, she (as a generic pronoun) or s/he were used as a way to establish a gender inclusive means of writing and communicating. Do you believe law firms, on the whole, offer a safe space for transgender people? This is a difficult question to answer because to my knowledge law firms have not participated in diversity surveys to the extent categories such as race and gender. However, the feedback I encounter from legal and other professionals reveals as much as anything confusion as to who is transgender. Particularly the concept of self-identity and preferred pronouns. As far as I am aware, the establishment of safe spaces for transgender employees working in law firms has not taken root on a profession-wide basis. This confusion is exasperated by media accounts regarding gender identity that seem to always express an extreme point of view whether positive or negative. At this point, I recommend to my clients that they be responsive and respectful even in situations that may appear to be counter-intuitive or those where they simply do not have any experience. The preferred use of pronouns is going to be an issue until a new normal is established.
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