Gender Identity – Is that really a thing?
Posted on May 21, 2019 on Musings from an HR Attorney by
Yes. For example, New York City recently passed legislation focused on providing lactation facilities for employees who are pumping breast milk for their new born child. My inclination was to say women have various rights to privacy and proper facilities when they lactate at work, but there is my bias. I say “women.” New York City stresses that “women” is the wrong term as some females may not identify as women and therefore a more neutral and non-gender specific term such as “employees” should be used.
Is this reasonable? You can decide, but the courts may intercede. For some this concept will be a struggle but that is just because of habit. I understand the thought that only “women” can lactate, but is that fact justification? Today’s society is starting to say no. This issue is no person should be forced to meet the stereotype of their sex. This was recognized by the Supreme Court of the United States when Price Waterhouse was found guilty of discrimination when some partners told an aspiring partner to act more “female” or she would never make partner. She didn’t make partner, the firm got sued, and the Supreme Court found the employer was wrong.
This issue of gender/sexual stereotypes (and now gender identity) is before the Supreme Court. While the Court is conservative by its majority, no one knows how they will rule on this latest trilogy of LGBTQ and gender identity cases. Regardless of the outcome, states are pushing for sexually neutral terms and the question must be “why not?” It may not be your way, but states and courts are likely to push for neutral terminology. You can fight it and possibly face employee discontent and possibly third party (government) intervention, or you can choose the neutral terminology. The choice is yours – for now, but for how much longer no one knows.