Gender Identity:
Definition, Comparison, Types & Examples

Gender identity in the workplace refers to how employees' internal sense of their own gender, whether male, female, nonbinary, or another identity, is recognized, respected, and accommodated within professional environments. It encompasses policies, practices, and cultural norms that ensure all employees can express their authentic gender identity without facing discrimination, harassment, or barriers to equal opportunity. Gender identity is distinct from biological sex assigned at birth and includes how individuals present themselves through appearance, behavior, and preferred names and pronouns.

Under employment law, gender identity protections prohibit employers from making adverse employment decisions, including hiring, firing, promotion, compensation, or access to facilities, based on an employee's gender identity or gender expression. Title VII of the Civil Rights Act of 1964, as interpreted by the U.S. Supreme Court in Bostock v. Clayton County (2020), extends federal sex discrimination protections to include gender identity and transgender status. Many states and localities, including New York City, Vermont, and New Hampshire, have enacted additional protections explicitly naming gender identity as a protected class.

Related terms: gender expression, transgender, nonbinary, gender dysphoria, cisgender, pronouns

Gender identity is an individual's internal, deeply held sense of their own gender, which may be male, female, neither, both, or somewhere on the gender spectrum. Gender identity is a personal, internal experience that may or may not align with the sex a person was assigned at birth based on physical anatomy.

Gender expression, by contrast, refers to the external ways individuals present their gender to the world through appearance, clothing, hairstyle, voice, behavior, mannerisms, and other outward characteristics. Gender expression is influenced by societal norms, cultural expectations, and personal preferences, and varies significantly across individuals, communities, and cultures.

These two concepts are independent of each other. For example, an employee who identifies as a woman (gender identity) may choose to dress in stereotypically masculine clothing (gender expression). Similarly, someone who identifies as nonbinary may present in ways that appear traditionally feminine or masculine on different occasions. Neither gender identity nor gender expression correlates with sexual orientation, a lesbian employee might identify as female and express her gender in traditionally feminine ways, while a gay man might have a masculine gender identity and gender expression.

In the workplace, both gender identity and gender expression are protected from discrimination. Employers cannot require employees to conform to gender stereotypes or impose dress codes, grooming standards, or behavioral expectations based on assumptions about how a particular gender should look or act.

Gender identity exists on a spectrum and includes many ways individuals experience and define their gender. There are 7 commonly recognized gender identity categories:

• Cisgender: Someone whose gender identity aligns with the sex they were assigned at birth
• Transgender (trans): Someone whose gender identity does not align with the sex they were assigned at birth
• Nonbinary (also genderqueer): Someone whose gender identity exists outside the male-female binary, which may include identifying as having no gender, multiple genders, or a gender that shifts
• Gender fluid: Someone whose gender identity changes over time, fluctuating between male, female, both, or neither
• Agender: Someone who does not identify with any gender
• Bigender: Someone who identifies as two genders, either simultaneously or alternating
• Gender expansive (gender diverse, gender nonconforming): Umbrella terms describing individuals whose gender identity or expression differs from cultural gender norms and expectations

Additional identities include pangender, demigender, and many others. The terminology continues to evolve, and individuals may use different terms to describe their experiences. Some people use terms like MTF (male to female) or FTM (female to male) to describe their transition experience, while others prefer "woman of trans experience" or "man of trans experience."

Intersex individuals, those born with physical sex characteristics that do not conform to binary male or female categories, represent approximately 1.7% of the population. Intersex is a term related to biological sex characteristics rather than gender identity, though intersex people may identify with any gender.

The best practice in any workplace is to respect the specific terms and labels individuals use to describe themselves rather than making assumptions based on appearance or records.

Federal protection against gender identity discrimination comes primarily from Title VII of the Civil Rights Act of 1964. In the landmark 2020 Supreme Court decision Bostock v. Clayton County, the Court held that discrimination based on transgender status or gender identity constitutes sex discrimination under Title VII. This ruling established that firing or refusing to hire someone because they are transgender, or taking any adverse employment action based on gender identity, violates federal law.

Title VII protections apply to employers with 4 or more employees and cover all aspects of employment including hiring, firing, promotion, compensation, job assignments, training, benefits, and workplace conditions. The law also prohibits creating a hostile work environment through harassment based on gender identity, such as using offensive language or repeatedly and intentionally using incorrect names or pronouns.

At the state and local level, many jurisdictions have enacted explicit gender identity protections that often provide broader coverage than federal law. New York City's Human Rights Law (NYCHRL), amended in 2002 and expanded in 2018, explicitly protects gender identity and expression. The law requires employers to use employees' preferred names, pronouns, and titles, and allows individuals to use single-gender facilities aligned with their gender identity. New Hampshire added gender identity as a protected class in 2018. Vermont's Fair Employment Practices Act prohibits discrimination based on both sexual orientation and gender identity.

In Canada, the Canadian Human Rights Act (CHRA) and Bill C-16 (passed in 2017) explicitly protect against discrimination based on gender identity and gender expression in federally regulated industries. Provincial laws provide additional protections across all employment sectors.

The Americans with Disabilities Act (ADA) has been interpreted by some federal courts, including the Fourth Circuit in Williams v. Kincaid (2022), to protect individuals with gender dysphoria from disability discrimination. However, the ADA explicitly excludes "gender identity disorders not resulting from physical impairments" from coverage, creating legal complexity in this area.

Gender identity discrimination occurs when an individual receives different or unfavorable treatment in the workplace because of their gender identity or gender expression. There are 8 common forms of workplace discrimination based on gender identity:

• Refusing to hire an applicant because they are transgender, nonbinary, or gender nonconforming
• Firing or demoting an employee because they disclosed plans to transition or have transitioned
• Denying access to restrooms, locker rooms, or other single-gender facilities that align with an employee's gender identity
• Intentionally and repeatedly refusing to use an employee's preferred name, pronouns, or title after being informed of their preferences
• Requiring employees to dress or groom according to gender stereotypes, such as mandating that only women wear makeup or only men wear ties
• Providing health benefits that categorically exclude gender-affirming care or transition-related medical treatments
• Subjecting employees to harassment, including derogatory comments, jokes about their gender identity, or creating a hostile work environment
• Retaliating against employees who report gender identity discrimination or request accommodations

Additional examples include paying transgender employees less than cisgender colleagues in similar positions, overlooking qualified transgender candidates for promotion, assigning undesirable work shifts to employees who have complained about discrimination, or requiring employees to provide medical documentation of their gender identity before using their preferred name.

Discrimination can also manifest as failure to accommodate. For instance, denying medical leave for gender-affirming procedures while routinely granting leave for other medical needs, or refusing to update personnel records, email addresses, and identification badges to reflect an employee's affirmed name and gender.

According to the 2015 U.S. Transgender Survey by the National Center for Transgender Equality, transgender individuals face unemployment rates three times higher than the general population, and nearly half (45.5%) of LGBTQ+ workers report experiences of discrimination and harassment at work. McKinsey research shows that transgender and gender-diverse workers earn on average 32% less than cisgender employees.

Employers are required under the New York City Human Rights Law and recommended under federal anti-discrimination guidance to use the name, pronouns, and title (such as Ms., Mr., or Mx.) with which employees self-identify, regardless of the person's sex assigned at birth, anatomy, appearance, or the name on official identification documents.

Common pronouns include he/him/his, she/her/hers, and the gender-neutral they/them/theirs. Some individuals use neopronouns such as ze/zir, ey/em, or combinations like he/they or she/they. Using they/them as singular pronouns is grammatically correct and has been used in English for centuries, including by authors like Shakespeare and Emily Dickinson.

Employers should implement the following 5 best practices for pronoun usage:

1. Create policies asking all employees to share their pronouns during introductions, in email signatures, and on identification badges so no one is singled out
2. Update intake forms, HR systems, and other records to allow employees to self-identify their name, gender, and pronouns without limiting options to male and female only
3. Train all staff, particularly managers and those with public contact, on the importance of using correct pronouns and how to respond to mistakes
4. Make quick, sincere apologies when mistakes occur, correct the error, and move forward without over-apologizing or making excuses
5. Allow employees to use their preferred names in all workplace contexts without requiring court-ordered name changes or identification documents in that name, except where federal, state, or local laws mandate otherwise

Intentional or repeated refusal to use a person's correct name or pronouns constitutes gender-based harassment under the NYCHRL and can violate Title VII. For example, repeatedly calling a transgender woman "he" or "Mr." after she has clearly communicated she uses she/her pronouns creates a hostile work environment.

Asking someone for their pronouns in good faith is not discriminatory. However, conditioning use of preferred names on legal documentation, requiring proof of medical procedures, or refusing to use gender-neutral pronouns because they "don't conform to grammar rules" all constitute violations of anti-discrimination law.

Employers must permit employees to use single-gender facilities, including restrooms, locker rooms, and changing areas, that most closely align with their gender identity, regardless of sex assigned at birth, anatomy, medical history, or identification documents. This requirement applies under federal EEOC guidance, the New York City Human Rights Law, and many state and local anti-discrimination laws.

The Occupational Safety and Health Administration (OSHA) requires employers to provide restroom access for health and safety reasons and strongly recommends allowing all employees to use facilities matching their gender identity. OSHA guidance states that denying this access can constitute sex discrimination under Title VII.

Employers should implement 4 key policies for facility access:

1. Allow all individuals to use the single-gender facility aligned with their gender identity without requiring identification, medical documentation, or proof of transition
2. Provide single-occupancy, gender-neutral restrooms where possible as an option for anyone who prefers privacy, but never require transgender, nonbinary, or gender nonconforming employees to use separate facilities
3. Post signage in all single-gender facilities stating: "Under the law, all people have the right to use the single-gender facility most closely aligned with their gender identity or gender expression"
4. Create safety plans that respect individual requests, for example, if a transgender person requests assignment to a facility corresponding to their sex assigned at birth due to safety concerns, honor that request

When other employees object to sharing facilities with transgender or gender nonconforming coworkers, such objections do not provide lawful grounds to deny access. Instead, employers may offer alternatives to the objecting individual, such as access to a single-occupancy restroom or private changing space within multi-user facilities.

Violations include prohibiting a transgender woman from using the women's restroom, requiring a nonbinary employee to provide identification before accessing appropriate facilities, forcing any employee to use a single-occupancy restroom instead of shared facilities, or barring a gender nonconforming person from facilities out of concern about making others uncomfortable.

New York City building code requires single-occupancy restrooms to be designated as gender-neutral and available to all people. Covered entities should train employees on facility access policies and establish clear codes of conduct for facility use that apply equally to everyone without singling out transgender or gender nonconforming individuals.

Employers cannot impose dress codes, uniforms, or grooming and appearance standards that require different compliance based on gender. Under the NYCHRL and increasingly under federal Title VII interpretations, holding employees to different standards based on gender constitutes discrimination, even if the policy appears neutral or is perceived as customary.

The variability of gender expression across culture, age, community, and individual identity makes gender-specific requirements inherently discriminatory. Requiring employees to conform to specific standards assigned to their gender, such as mandating that women wear makeup or men wear ties, serves no legitimate non-discriminatory purpose and reinforces harmful gender stereotypes.

Employers can enforce dress codes and appearance standards, but must do so in gender-neutral ways. There are 5 compliant approaches to workplace appearance policies:

1. Create standards that apply equally to all employees regardless of gender, such as requiring "business professional attire" or "hair pulled back from the face" for all workers in certain roles
2. Offer multiple uniform options without requiring specific genders to wear specific styles, for example, providing both pantsuit and skirt suit options that any employee can choose
3. Provide uniform shirts in different styles (such as fitted blouses and looser button-down shirts) but allow all employees to select their preferred style
4. Apply grooming requirements consistently, such as requiring all servers to keep long hair tied back rather than mandating that only women have long hair or only men have short hair
5. Remove gender-specific jewelry, makeup, and accessory requirements entirely

Violations of gender-neutral dress code requirements include maintaining policies that apply differently to men and women, requiring female bartenders to wear makeup while male bartenders face no equivalent requirement, permitting only women to wear jewelry, requiring all men to wear ties to access a restaurant, or mandating different uniforms for male and female employees.

Employers cannot defend discriminatory dress codes by claiming they cater to customer preferences or maintain a particular brand image. Under the NYCHRL, the fact that a policy differentiates based on gender is sufficient to establish discrimination, regardless of intent or whether the distinction seems minor.

Gender-specific grooming standards are particularly problematic for transgender and nonbinary employees. For example, requiring cisgender women but not transgender women who are residents at a treatment facility to wear wigs and high heels, or imposing different appearance standards on employees based on the gender marker in their personnel files rather than their gender identity, both constitute unlawful discrimination.

Employers must provide employee benefits equally to all workers regardless of gender identity. Health benefit plans cannot deny or exclude services based on gender, and must cover gender-affirming care (also called transition-related care or transgender care) to avoid discrimination.

Gender-affirming care is medically necessary, effective, and potentially life-saving for many transgender, nonbinary, and gender nonconforming individuals. This care encompasses a range of treatments including hormone replacement therapy, breast augmentation or reconstruction, mastectomy, facial feminization, voice training, and various surgical procedures. Treatment varies according to individual needs and overall health, and medical necessity should be determined through individualized assessment rather than categorical exclusions.

Federal law under the Affordable Care Act requires self-insured plans to cover medically necessary gender-affirming care, and New York State law requires fully-insured plans to provide the same coverage. Employee benefit plans covered by and in compliance with the Employee Retirement Income Security Act (ERISA) and applicable federal anti-discrimination laws are also in compliance with the NYCHRL.

There are 5 key requirements for non-discriminatory health benefits:

1. Cover gender-affirming care according to recognized professional standards, such as the World Professional Association for Transgender Health (WPATH) Standards of Care
2. Avoid categorical exclusions that automatically deny coverage for procedures deemed "cosmetic" without individualized medical necessity assessments
3. Provide coverage for health services based on medical need rather than the gender marker in medical records, for example, covering prostate cancer screening for transgender women and cervical cancer screening for transgender men
4. Consider selecting plans that do not prohibit, limit, or impose significantly higher co-pays for out-of-network care, since relatively few providers currently perform certain gender-affirming procedures
5. Offer health benefits to same-sex spouses on equal terms with opposite-sex spouses

Employers who select non-discriminatory benefit plans are generally not liable for individual coverage denials by insurance companies. However, if an employer receives notice that their selected plan routinely denies gender-affirming care, the employer must take action to remedy the violation by selecting a more inclusive plan.

Violations include offering benefits that categorically exclude transition-related care, providing stipends for childcare to female but not male employees, or treating medical leave requests for gender-affirming procedures differently than requests for other medical conditions. Employers must grant reasonable accommodations for employees undergoing gender transition, including medical leave for counseling appointments, surgery, and recovery, in the same manner they would for any other medical condition.

Gender-based harassment is a form of discrimination prohibited under Title VII and state and local anti-discrimination laws. Harassment based on gender identity can include unwanted sexual advances, but does not have to be sexual in nature. Comments, jokes, gestures, unwanted touching, or images that target a person based on their gender identity all constitute unlawful harassment.

Under the NYCHRL, gender-based harassment can be a single isolated incident or repeated behavior. The law recognizes that disparate treatment manifests as harassment when incidents or behavior create an environment that reflects or fosters a culture of sex stereotyping, degradation, humiliation, bias, or objectification. While the severity or pervasiveness of harassment is relevant to damages, the existence of differential treatment based on gender is sufficient to establish a harassment claim.

Examples of gender identity harassment include intentionally and repeatedly using incorrect pronouns or names, making derogatory comments about someone's gender identity or transition, asking intrusive questions about medical procedures or anatomy, displaying anti-transgender materials or imagery, making jokes about gender nonconformity, or using slurs and offensive epithets.

Employers should implement 6 practices to prevent and address gender identity harassment:

1. Establish clear anti-discrimination and anti-harassment policies that explicitly include gender identity and gender expression protections
2. Provide regular training for all employees on creating inclusive environments free from gender stereotyping and harassment
3. Train managers and supervisors on recognizing and responding to gender identity harassment, including how to handle reports and support affected employees
4. Create accessible internal reporting procedures that allow employees to report violations without fear of retaliation
5. Investigate all complaints promptly, thoroughly, and confidentially, taking appropriate corrective action when harassment is substantiated
6. Implement policies for interacting with customers and the public in a respectful, non-discriminatory manner consistent with gender diversity principles

Federal law currently does not prohibit simple teasing, offhand comments, or isolated incidents unless they are extremely serious. However, the NYCHRL applies a broader standard, conduct must be sufficiently frequent or severe to create a hostile work environment or result in tangible employment action such as termination or demotion, but the threshold for establishing harassment is lower than under federal law.

Employers cannot ignore harassment by claiming ignorance or that the behavior doesn't rise to a certain level of severity. More than 75% of transgender employees report keeping their gender identity hidden in external professional settings due to fear of discrimination, and more than 50% feel uncomfortable sharing their identity at work. Creating an environment where employees feel safe reporting harassment and confident that complaints will be taken seriously is essential for compliance and employee wellbeing.

Retaliation occurs when an employer takes adverse action against an employee for opposing discrimination, requesting reasonable accommodations, filing complaints, or participating in discrimination investigations. Under Title VII and the NYCHRL, retaliation for opposing gender identity discrimination is itself unlawful, even if the underlying conduct is not ultimately determined to violate anti-discrimination law.

An action constitutes unlawful retaliation if it is reasonably likely to deter a person from engaging in protected activities. Under the NYCHRL, the action does not need to rise to the level of a final employment decision or materially adverse change in terms and conditions of employment to be retaliatory, any action that could discourage an employee from asserting their rights is prohibited.

Protected activities that trigger anti-retaliation protections include making internal complaints about discrimination, filing charges with the EEOC or state human rights commissions, filing lawsuits, participating as a witness in discrimination investigations or proceedings, requesting accommodations for gender transition, or opposing what an employee believes in good faith to be discriminatory practices.

There are 7 common forms of retaliation related to gender identity:

• Terminating or demoting an employee after they file a discrimination complaint or testify in a coworker's case
• Assigning undesirable shifts, work locations, or job duties to employees who have reported harassment
• Denying promotions, raises, or training opportunities to employees who requested gender identity accommodations
• Subjecting employees to increased scrutiny, performance improvement plans, or disciplinary action following discrimination complaints
• Excluding employees from meetings, projects, or workplace social activities after they disclose their transgender status
• Refusing to advance program participants to the next stage despite successful completion after they raised concerns about unequal treatment
• Creating a hostile work environment through increased harassment or isolation following an employee's assertion of gender identity rights

Employers can protect against retaliation claims by establishing clear policies prohibiting retaliation, training supervisors on anti-retaliation obligations, documenting legitimate business reasons for employment decisions, and monitoring for patterns of adverse action following protected activity.

The EEOC and similar state agencies can impose civil penalties up to $125,000 for violations of anti-discrimination law, and up to $250,000 for violations resulting from willful, wanton, or malicious conduct. These penalties are in addition to other remedies including back pay, front pay, compensatory damages, punitive damages, and injunctive relief. The Commission may consider the absence of adequate anti-discrimination policies as a factor in determining liability and assessing damages.

Gender identity in the workplace is often compared to 3 related concepts:

Gender Identity vs. Sexual Orientation

Gender identity and sexual orientation are independent characteristics that are often conflated but represent distinct aspects of identity. Sexual orientation describes a person's physical, romantic, emotional, or other form of attraction to others, including heterosexual, bisexual, lesbian, gay, queer, asexual, pansexual, and other orientations. Gender identity, by contrast, describes a person's internal sense of being male, female, both, neither, or another gender.

These identities do not correspond in predictable ways. A transgender woman may identify as lesbian, heterosexual, bisexual, or any other sexual orientation. A nonbinary person may be attracted to people of any gender or no gender at all. Both gender identity and sexual orientation are protected from workplace discrimination under Title VII following the Bostock decision, though they remain distinct legal categories.

Gender Identity vs. Sex Discrimination

Sex discrimination traditionally refers to unfavorable treatment based on biological sex, the physical characteristics, including chromosomes, hormones, and reproductive organs, typically categorized as male or female at birth. Gender identity discrimination focuses on treatment based on a person's internal sense of gender, which may or may not align with sex assigned at birth.

The Supreme Court's Bostock decision established that discrimination based on gender identity constitutes sex discrimination under Title VII. The Court reasoned that an employer who fires someone for being transgender necessarily considers the person's sex assigned at birth alongside their gender identity, making gender identity discrimination inherently a form of sex-based discrimination. This interpretation means gender identity receives the same legal protections as other forms of sex discrimination in employment.

Gender Identity vs. Gender Expression

Gender identity is internal and personal, it is how individuals understand and experience their own gender. Gender expression is external and observable, it includes the ways people present their gender through clothing, hairstyle, voice, mannerisms, and behavior. While gender identity and gender expression often align, they are distinct concepts that do not necessarily correspond.

An employee may have a female gender identity but express gender in ways that society considers masculine. Another employee may identify as nonbinary but present in ways that appear conventionally feminine or masculine depending on context or personal preference. Both gender identity and gender expression are protected from workplace discrimination. Employers cannot require employees to express gender in ways that conform to stereotypes, nor can they discriminate based on assumptions about gender identity drawn from gender expression.