WHAT IRS NOW KNOWS ABOUT “MISGENDERING” AND “DEADNAMING”
A GS-8 Contact Representative from Chamblee, Georgia just schooled the IRS on what these terms mean and why it is illegal to engage in them. “Deadnaming” is the practice of …
referring to transgender people who have changed their name by the name they used before their transition. EEOC has found this is insensitive, offensive, or damaging—and illegal. Meanwhile, someone “misgenders” a person or subjects that person to “misgendering” by identifying the gender of that person incorrectly, such as by using the incorrect label or pronoun.
The EEOC has held that supervisors and coworkers should use the name and gender pronouns that correspond to the gender identity with which the employee identifies in employee records and in communications with and about the employee. Persistent failure (as opposed to “inadvertent and isolated” incidents) to use an employee’s correct name and pronouns may constitute unlawful sex-based harassment if such conduct is either severe or pervasive to create a hostile work environment.
OPM Guidance states federal agencies should allow employees to have the name they use reflected in all electronic and physical places where names are displayed, including email addresses, email address displays, name displays in virtual meeting platforms, email signature blocks, employee directories, employee profiles, business cards, name plates, and name tags, either from the time an employee onboards or promptly after a current employee requests an update.
In this case, Complainant is a member of a protected group based on her gender identity. She was subjected to harassment involving that protected class when, despite requesting to be referred to using they/them/theirs pronouns or by her full name, the Agency addressed the Notice of Receipt to “Mr. [Complainant’s last name]” and used he/him/his pronouns in the Notice of Acceptance and Partial Dismissal. Thereafter, Complainant changed her name and began using she/her/hers pronouns. However, the Agency’s pre-hearing submissions contained her deadname and misgendered her. Moreover, the Notification of Receipt for Complainant’s second EEO complaint was again addressed to “Mr. [Complainant’s last name],” and the investigative record contained a reference to her deadname. We find that the preponderance of the evidence in the record establishes that this harassment was based on Complainant’s sex.
EEOC wrote, “However, in the context of a transgender employee filing an EEO complaint alleging harassment based on gender identity, the Agency’s repeated use of the employee’s wrong pronouns and wrong name during the processing of two EEO complaints would be especially harmful and, therefore, severe to a reasonable person in that employee’s position. We therefore find that the harassment was sufficiently severe to constitute a hostile work environment.”
Aside from awarding the employee compensatory damages and restoration of leave taken unnecessarily, EEOC encouraged the agency to revise its EEO charge forms because of the limited genders and similar terms. It wrote,” We note that using the shortened ‘LGBT’ acronym, which stands for ‘Lesbian, Gay, Bisexual, and Transgender,’ may appear to exclude members of the LGBTQIA+ community. Moreover, raising claims of discrimination based on sexual orientation, gender identity, and/or transgender status is not limited to members of the LGBTQIA+ community. Straight, or heterosexual, as well as cisgender complainants may also allege discrimination based on sexual orientation and/or gender identity.” This is advice that union reps should encourage agencies to follow ASAP.
For more details on this very unusual case, check out Roxanna B., v. Janet L. Yellen, Sec’y., Dep’t of the Treasury (IRS), EEOC Nos. 2020004142, 2021003810 (2024)
