Misgendering and Deadnaming Isn't Harmless

As an attorney who writes, counsels and argues for a living, I know the power of words. Misgendering and deadnaming individuals are actions that have a powerful impact on the recipient. Misgendering and deadnaming and other acts of discrimination and harassment due to gender are against the law. And defending these types of cases can be very expensive for employers.

Terminology

The National Institutes of Health (“NIH”) describes misgendering as using the incorrect gender when referring to another person. This occurs by using incorrect pronouns, using the wrong gendered name, or arguing with a person about their gender. Deadnaming is the act of calling a transgender person by an incorrect name—usually what was on their birth certificate as opposed to the name they have chosen. The American Psychological Association defines transgender as an umbrella term for individuals whose gender identity differs from the sex they were assigned at birth and can include trans men, trans women, non-binary and genderqueer individuals. Gender identity refers to a person’s internal sense of being male, female or something else. Gender expression refers to the way a person communicates gender identity to others through behavior, clothing, hairstyles, voice or body characteristics.

Impact

Repeatedly and intentionally misgendering and deadnaming an individual is emotionally harmful and damaging to the recipient. According to the NIH, misgendering and deadnaming “often triggers feelings of anxiety, depression, and alienation from society. . . . Several studies show that when you use someone’s correct pronouns and name, it drastically decreases that person’s thoughts of suicide, depression, and anxiety. This is especially true for transgender youth.”

EEOC Guidance for Employers

In April, the Equal Employment Opportunity Commission (“EEOC”) issued the updated Enforcement Guidance on Harassment in the Workplace (“Guidance”). In the Guidance and relying on Bostock v. Clayton County, 590 U.S. 644 (2020) and others, the EEOC identified the following ways employers may be liable for gender identify harassment and discrimination in the workplace:

. . . . [S]ex-based harassment includes harassment based on sexual orientation or gender identity, including how that identity is expressed.?Harassing conduct based on sexual orientation or gender identity includes epithets regarding sexual orientation or gender identity;?physical assault due to sexual orientation or gender identity;?outing (disclosure of an individual’s sexual orientation or gender identity without permission);?harassing conduct because an individual does not present in a manner that would stereotypically be associated with that person’s sex;?repeated and intentional use of a name or pronoun inconsistent with the individual’s known gender identity (misgendering);?or the denial of access to a bathroom or other sex-segregated facility consistent with the individual’s gender identity.

Elements of a Claim

To prevail on a hostile work environment claim, an employee must show that they belong to a protected group, were subjected to unwelcome harassment, the harassment was based on a protected characteristic, the harassment was sufficiently severe or pervasive to alter the conditions of the employee’s employment, and the employer was responsible for the hostile work environment. Discrimination and retaliation claims have similar elements regarding the employee’s identity with a protected group and the employee must show that they experienced an adverse employment action due to their protected status or characteristic.

Court Decisions

Since Bostock and the EEOC’s Guidance, multiple courts have held that misgendering and deadnaming constitutes actionable sex discrimination and harassment and may constitute a hostile work environment. In Doe v. Triangle Doughnuts, LLC, 472 F.Supp.3d 115 (Eastern Dist. Pa.2020), the district court found the employee had pleaded claims of hostile work environment and discriminatory termination based on gender stereotyping and misgendering. During her employment she was frequently misgendered by coworkers and customers despite repeated requests for them to use female pronouns, she was not allowed to use the women’s restroom, she was subjected to a stricter dress code than cisgender women, she was asked inappropriate questions about her identity and anatomy, she was terminated for her transgender status, and despite complaints by the employee, the employer took no action.

Likewise, in Milo v. CyberCore Techs., LLC, 2020 U.S. Dist. LEXIS 5355 (Dist. Md. Jan. 13, 2020), a transgender employee pleaded that she experienced multiple incidents of harassment and discrimination based on her gender identity and expression and had made multiple complaints without recourse by the employer. She was ultimately terminated for a “bad attitude.” While the court did not find enough facts to support a hostile work environment claim, it did find that the employee stated sufficient facts to support discrimination and retaliation claims due to her transgender status and complaints.

In Cunningham v. Burlington Coat Factory Warehouse Corp., 2024 U.S. Dist. LEXIS 35052, Case No. 1:2018cv11266 (Dist. NJ Feb. 29, 2024), the district court held that the employee had pleaded facts sufficient to state a claim of hostile work environment. The employee alleged that she was frequently misgendered at work, asked inappropriate questions about her gender and anatomy, and subjected to a stricter dress code than cisgender employees.

Recently, in Copeland v. Ga Dep’t of Corr, 97 F.4th 766 (11th Cir. 2024), the U. S. Court of Appeals for the Eleventh Circuit reversed the summary judgment granted to the employer. The Copeland court found that the harassment pleaded by the employee correctional officer was frequent, severe and pervasive. The employee identified 34 individuals who harassed him at work, and he described radio harassment that occurred daily for a year. The harassment continued despite the employee’s objections, which courts have long recognized to support the severity component of a hostile work environment claim. Also, supervisors participated in the harassment, repeatedly calling him “baby girl.” The context of the harassment occurring in a correctional facility and having overtones of physical threats and humiliation further supported the severity element of his claim.

Employer Action

Employers seeking to avoid expensive litigation claims and employers wishing to create inclusive and supportive work environments for all their employees will act proactively to create policies and invest in training that advises their supervisors and employees to respect their coworkers’ preferred pronouns and names. They will accommodate transgender employees’ requests to use the facilities that align with their gender and allow them to dress accordingly. Upon the receipt of complaints about gender harassment and discrimination, wise employers will promptly investigate the complaints and take appropriate action to remediate any substantiated complaints. And when in doubt about the appropriate action to take or not take, prudent employers will contact an employment lawyer for advice and guidance.