Guidance Regarding Gender Identity and Inclusion in the Federal Workplace

U.S. Office of Personnel Management

Law, Policy and Purpose

It is the policy of the Federal Government to treat all its applicants and employees with

dignity and respect and to provide a workplace that is free from discrimination. The

U.S. Supreme Court held in Bostock v. Clayton County, 590 U.S. ____, 140 S. Ct. 1731

(2020), that Title VII of the Civil Rights Act of 1964 prohibits employment

discrimination on the basis of gender identity and sexual orientation. Executive Order

13988 on Preventing and Combating Discrimination on the Basis of Gender Identity or

Sexual Orientation directs Federal agencies to fully enforce Title VII and other laws

that prohibit discrimination on the basis of gender identity or sexual orientation.

Executive Order 14035 on Diversity, Equity, Inclusion and Accessibility in the Federal

Workforce states that each Federal employee should be able to openly express their

sexual orientation, gender identity, and gender expression and have these identities

affirmed and respected without fear of discrimination, retribution, or disadvantage,

and it directs Federal agencies, to the extent permitted by law, to take actions to ensure

that all Federal employees have their respective gender identities accurately reflected

and identified in the workplace.

Agencies should revise and implement their policies, practices, and any associated

trainings so that they afford a non-discriminatory and inclusive work environment to

applicants and employees irrespective of their sex, gender identity, gender expression,

or sexual orientation, consistent with current law and executive policy. Agencies also

should take steps to implement or increase the availability of training programs on

gender identity and inclusion in the Federal workplace for employees, managers, and

leadership.

The purpose of this document is to provide guidance to agencies regarding gender

identity inclusion in the Federal workplace. In providing this Guidance, the Office of

Personnel Management (OPM) seeks to support agency compliance with

nondiscrimination laws and executive policies and to foster a welcoming and

supportive workplace for all applicants and employees across the Federal Government

by providing a baseline of gender identity inclusion practices. Agencies are encouraged

to create or update their agency-level policies on gender identity inclusion, consistent

with this Guidance.

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Confidentiality and Privacy

All applicants and employees should have control, to the extent possible, over when,

with whom, and how much they share about their gender identity or sex

characteristics. Information about an applicant’s or employee’s gender identity or sex

characteristics (such as the sex they were assigned at birth, medical history regarding

gender or sex, or intersex status) is potentially sensitive personal information.

Applicants and employees may choose to openly discuss their gender identity or sex

characteristics or to keep those matters private, consistent with applicable laws,

regulations, and policies. There may be instances where applicants or employees are

required to disclose some aspects of this information, such as during a background

security investigation that requires the listing of formerly-used names or during the

onboarding process where sex or gender markers are captured. In protecting this

information, the agency is responsible for complying with any applicable laws,

regulations, and policies. For example, where the Privacy Act of 1974 (5 U.S.C. § 552a)

applies, certain conditions must be met for disclosure of records contained in a system

of records, and there are various other protections the agency would be responsible for

implementing. Even if there is not otherwise a restriction on disclosure in applicable

law, regulation, or policy, human resources personnel, managers, and coworkers

should be aware of the potential sensitivity of gender identity or sex characteristics

information and, to the extent possible, are advised to avoid disclosing such

information, absent the consent of the individual.

Legal Name Change

Legal name changes related to gender identity are handled in the same way as any

other legal name change in the employee’s Official Personnel Folder (OPF) and other

employee records reflecting legal names (e.g., pay accounts and benefits documents).

If an employee seeks to change their legal name throughout their entire OPF, including

historical personnel records, instructions for doing so are set forth in OPM's Guide to

Personnel Recordkeeping.

Names and Pronouns

All applicants and employees should be addressed by the names and pronouns they

use to describe themselves. Using correct names and pronouns helps foster workplaces

free of discrimination and harassment. This practice also creates an inclusive work

environment where all applicants and employees are treated with dignity. The isolated

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and inadvertent use of an incorrect name or pronoun will generally not constitute

unlawful harassment, but, as the Equal Employment Opportunity Commission (EEOC) has

explained, continued intentional use of an incorrect name or pronoun (or both) could,

in certain circumstances, contribute to an unlawful hostile work environment.

For an employee to be referred to by the name they choose and their identified

pronouns in everyday interactions, both written and oral, agencies should not require

a legal change of name or gender marker, any medical certification, or any other

documentation.

Agencies should allow employees the option 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 they request

an update if they are a current employee.

Agencies should take steps to streamline the process for updating names so that

applicants and employees can request an update once and have the update reflected

across information technology (IT) systems, to resolve or avoid the issue of

inconsistency of names in different systems. Agencies should communicate with all

applicants and employees about the process for updating names in IT systems, so they

know how to initiate the process and what to expect regarding timing and consistency

of updates in all IT systems.

Agencies should also take steps to provide the option for employees to include the

pronouns they use in employee systems and profiles, including email signature blocks,

employee directories and employee profiles.

Agencies should implement this guidance to the extent practicable, and where

necessary should explore any changes to agency human resources or IT systems that

may hinder the agency’s ability to use these best practices.

Sanitary and Related Facilities

The Department of Labor’s Occupational Safety and Health Administration standards

require agencies to make access to adequate sanitary facilities available for all

employees to use when they need to in order to avoid serious health consequences. As

the EEOC has explained, under Title VII, agencies should allow access to common and

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single-user restrooms and other facilities corresponding to an employee’s gender

identity. Agencies should not condition this access on an employee having undergone

or providing proof of any gender affirming surgeries or other medical procedures.

Agencies should not limit an employee to use facilities that are located at an

unreasonable distance from the employee’s work station, or inconsistent with the

employee’s gender identity. Agencies should not restrict any employee to a single-user

facility instead of common facilities; agencies can, however, make a single-user facility

available to all employees who might choose to use it. Agencies should also explore

opportunities to expand the availability of all-gender restrooms and facilities in

Federally owned and leased workplaces in coordination with the landholding agency

with jurisdiction over the facility.

Workplace Practices to Support Transitioning Employees

Any employee’s gender transition should be treated with privacy and confidentiality in

the workplace. Each agency should establish its own internal policies and procedures

to support transitioning employees consistent with this Guidance, agency-specific

organizational structures, and the individualized needs of the transitioning employee.

Those policies should address, at a minimum, the following:

• The type of support a transitioning employee can expect from supervisors,

managers, human resources personnel, and agency employee support services,

such as access to Employee Assistance Programs and other employee resources;

• The provision of a central point of contact in a human resources office or another

similar office charged with working with any transitioning employee who requests

support; and

• A procedure that an individual employee and human resource office or similar

office may use to support a workplace transition consistent with the employee’s

individualized needs. The procedure could include, with the transitioning

employee’s input and consent, when and which colleagues to notify of a transition;

the timing for name changes and pronoun changes, where applicable and

consistent with this Guidance, in email, IT systems, and employee profiles; and a

process for any gender identity inclusion training for supervisors, managers, and

coworkers if such training would be beneficial.

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Agencies should make their agency-specific transition policies and procedures

accessible and available to all employees—for example, by posting them on prominent

agency intranet sites where all employees can easily find them.

Employees receiving medical treatment as part of their transition may use sick or other

leave under applicable regulations and policies, just as with medical treatment for any

other reason.

Dress and Appearance Standards

Consistent with applicable law, agencies should review and, as necessary, update

relevant policies so that all employees are allowed to dress and present consistent with

their gender identity. Employees transitioning in the workplace decide when to start

dressing and presenting consistent with their gender identity.

Equal Employment Opportunity and Anti-Discrimination Resources

EEOC is responsible for enforcing Federal nondiscrimination employment laws,

including Title VII. Employees or applicants who believe they have been discriminated

against on the basis of sex, including sexual orientation and gender identity, may file a

complaint through their agency’s Federal sector equal employment opportunity (EEO)

complaint process. Agencies are required to provide information about the EEO

complaint process and how to contact the agency’s EEO office, and generally,

individuals must contact the EEO office within 45 calendar days from the day the

alleged discrimination occurred. EEOC’s website provides additional information

regarding the Federal EEO complaint process.

In addition, employees or applicants who believe they have been discriminated against

may, as appropriate and if applicable, file a grievance under an applicable collective

bargaining agreement; file an appeal with the U.S. Merit Systems Protection Board

(MSPB); or file a complaint with the U.S. Office of Special Counsel (OSC). For specific

information on filing procedures, employees and applicants may visit

http://www.mspb.gov and http://www.osc.gov.

Questions

For questions about this Guidance, contact OPM’s Office of Diversity, Equity, Inclusion

and Accessibility at [email protected]. Managers, supervisors, and employees may also

consult with their agency’s human resources, equal employment opportunity, and

diversity, equity, inclusion, and accessibility offices, or their offices of general counsel,

regarding individual situations.