Constructing and Implementing Transgender Policy for Public Administration
| Author | Nicole M. Rishel Elias |
| DOI | 10.1177/0095399716684888 |
| Published date | 01 January 2017 |
| Date | 01 January 2017 |
| Subject Matter | Articles |
research-article2017
Article
Administration & Society
2017, Vol. 49(1) 20 –47
Constructing and
© The Author(s) 2017
https://doi.org/10.1177/0095399716684888
DOI: 10.1177/0095399716684888
Implementing
journals.sagepub.com/home/aas
Transgender Policy for
Public Administration
Nicole M. Rishel Elias1
Abstract
Sex and gender are increasingly complex topics that prompt new policy and
administrative responses within public agencies. As the federal workforce
evolves, federal employment policy must accommodate the needs of
employees who do not fit traditional sex/gender categories. One emerging
area of policy targets transgender employees, particularly policy that guides
the employer response throughout the transitioning process. This research
seeks to answer the following questions: How can transitioning policy and
implementation within federal agencies affect employees? and How should
transitioning policy be crafted and implemented? This work addresses
organizational behavior and management issues by presenting a successful
case of a workplace transition. Interviews of an administrator guiding the
transitioning process and one of the first federal employees to complete
a transition while in a federal field office are conducted. Ultimately, this
research explores challenges with emergent policy and suggests avenues for
designing and enacting future transitioning policy.
Keywords
public administration, public policy, human resources management, LGBT,
transgender
1City University of New York, New York, NY, USA
Corresponding Author:
Nicole M. Rishel Elias, Assistant Professor, Public Administration, Department of Public
Management, John Jay College of Criminal Justice, City University of New York, 524 West
59th Street, Room 53307 Haaren Hall, New York, NY 10019, USA.
Email: nelias@jjay.cuny.edu
Elias
21
Introduction
The demographic composition of public agencies is an increasingly impor-
tant topic for public administration. Sex and gender are complex demo-
graphic categories that prompt policy and human resources responses at
both the individual and organizational levels. The federal government has
been a leader in addressing the changing needs of LGBT (lesbian, gay,
bisexual, and transgender) employees in recent years. Prior to 2012, there
were no data available regarding the actual number of self-identified LGBT
individuals within the federal government. In the absence of LGBT data,
knowledge of LGBT employees has been drawn from historical action tar-
geting LGBT federal employees. It was only after 2012 that the U.S. Office
of Personnel Management’s (OPM) Federal Employee Viewpoint Survey
(FEVS), the annual climate survey that measures employees’ perceptions,
included an LGBT demographic question.1 The FEVS LGBT demographic
question asks respondents, “Do you consider yourself to be one or more of
the following? Heterosexual or Straight; Gay or Lesbian; Bisexual;
Transgender; I prefer not to say.”2 OPM collapses the “Gay or Lesbian,”
“Bisexual,” and “Transgender” categories into one publicly reported
“LGBT” category. Including the LGBT question in the FEVS is a signifi-
cant step in obtaining valuable data on employee perceptions of their work
experience. Although these survey data are useful in a number of ways,
almost all public administration scholarship on LGBT federal employees
relies on the FEVS and does not provide detailed accounts of personal
LGBT experiences in the federal government.
This research seeks to fill this gap by exploring the transgender experience
in greater detail. A significant aspect of a transgender person’s experience is
his or her transition, which becomes even more significant when it is done in
both a personal and professional space. To examine this process, I present a
successful case of a workplace transition through interviews of an adminis-
trator guiding the transitioning process and one of the first federal employees
to complete a transition while in a federal field office. The goal of this work
is to answer the following questions: How can transitioning policy and imple-
mentation within federal agencies affect employees? and How should transi-
tioning policy be crafted and implemented? This research highlights
challenges with emergent policy and suggests avenues for designing and
enacting future transitioning policy.
In this article, I present an overview of the history of LGBT employees in
the federal government. Next, I review current transgender protections in the
workplace. I then highlight the key insights from the two in-depth interviews.
Then, the analysis and recommendations for policy and implementation are
22
Administration & Society 49(1)
distilled from the interview data. Last, I conclude with final thoughts on this
developing policy and future research directions.
History of LGBT Employees in the Federal
Government
The difficult history of LGBT employees within the federal government
involves discriminatory practices beginning in the 1950s. The period known
as “the Lavender Scare” began with Senator Joseph McCarthy’s claim that
205 Communists were working for the State Department (D. K. Johnson,
2004, p. 1). John Peurifoy, the Deputy Undersecretary for the State
Department, denied that the State Department employed Communists but
revealed that a number of individuals whom the Agency considered to be
security risks had been forced out, including 91 gay individuals (p. 1). This
prompted key actors such as politicians, journalists, and citizens to believe
that gay individuals posed more of a threat to national security than
Communists (p. 2). During this time, there was an underlying “fear that
[Gay individuals] posed a threat to national security and needed to be sys-
tematically removed from the federal government” (p. 9). This fear led to
the removal of thousands of government employees (p. 166). By November
1950, in what some politicians defended as “the purge of the perverts,”
nearly 600 federal employees were fired from the government due to their
sexual orientation (p. 2). Then, in 1952, President Eisenhower’s campaign
slogan focused on the promise to rid the federal government of corruption,
communism, and sexual perversion, or “Let’s Clean House” (p. 121). He
later went on to issue an Executive Order which disqualified anyone from
federal employment who had a “sexual perversion” (Executive Order
10450, 1953).3
During the Lavender Scare, there was no record of an openly transgender
federal employee. However, there is evidence that an individual was targeted
if his or her gender expression did not conform to the cultural sex stereotypes
of the sex he or she was assigned at birth. In 1953, one State Department
worker accused 18 coworkers of being potential security risks due to their
physical traits (pp. 119-120). She alleged that the female coworkers she iden-
tified had deep voices, unfeminine faces, odd shaped lips, and small hips. In
addition, she accused a male coworker of having a feminine complexion and
a peculiar girlish walk (pp. 119-120). It was assumed by the State Department
employee that these individuals did not conform to how she believed a man
or woman should look or act because he or she was gay. These allegations
were added to the permanent record of each accused employee, and each
employee was investigated (pp. 119-120).
Elias
23
In 1978, the Civil Service Reform Act (CSRA) was passed. This Act
defines prohibited personnel practices, one of which was a prohibition on
discrimination against federal employees for conduct not directly related to
job duties (CSRA, 1978). In 1980, OPM found that this applied to sexual
orientation, and that an individual who believed he or she was discriminated
against based on his or her sexual orientation could file a complaint with the
U.S. Office of Special Counsel (OSC; Hicks, 2014). However, the interpreta-
tion of sexual orientation protection under the CSRA has never been specifi-
cally addressed in a judicial decision by the U.S. Merit Systems Protection
Board (MSPB; 2014, p. 45). Departing from this difficult history, we begin to
see progress in positively acknowledging and supporting LGBT employees
throughout the federal government.
Transgender Protections in the Workplace
According to many LGBT scholars, transgender individuals4 (the “T” in this
acronym) are still being left behind when it comes to workplace policy protec-
tions (Currah, 2008; R. G. Johnson, 2011; Marks, 2006; Morrissey, 2007). While
sexual orientation5 is increasingly included in the list of protected classes within
public sector workplaces, gender identity6 is often neglected, possibly due to
ignorance or bias. Currently, the primary recourse for transgender individuals
who feel they have faced discrimination in the public sector workplace is a law-
suit under Title VII of the Civil Rights Act of 1964 (Gordon, 2009). In 1964,
Congress passed Title VII of the Civil Rights Act, which prohibited discrimina-
tion on the basis of sex and other statuses. Since 1964, the Supreme Court has
often analyzed what “sex” means within the Act. In the landmark case of Price
Waterhouse v. Hopkins (1989), the Supreme Court determined that Title VII
prohibits discrimination because an individual fails to conform to gender-
based expectations. In that case, the Court found that discriminating against
someone because he or she does not meet a traditional, gender-based stereo-
type, including...
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