Bargaining for
LGBTQIA+ Justice
At a time of widespread backlash against LGBTQIA+ rights, it is especially important that we are leveraging our union power at the bargaining table to fight for LGBTQIA+ workplace justice. To assist in this effort, Pride at Work is putting together guidance on bargaining language to make our contracts as protective of LGBTQIA+ members as possible.
In this initial guidance document, we have identified some key issue areas important to LGBTQIA+ workplace justice. For each issue area, we have identified why it matters, provided legal context, recommended what language should be included or avoided, and where appropriate provided sample contract language that can be used or adapted.
Please note that this guidance is not intended to be comprehensive or definitive. There are issues important to LGBTQIA+ workers not included here that will be added in future guidance. And there are factors specific to the industry, sector, geography, and union of a particular workplace that generalized guidance cannot fully address. This guidance will likely also grow and adapt as we learn from our members’ successes, challenges, wisdom, and creativity. Please reach out to info@prideatwork.org if you have any questions or feedback.
Protections Against Discrimination and Harassment
Anti-discrimination and anti-harassment protections are perhaps the most essential provisions for protecting LGBTQIA+ workers, so it is important that unions bargain strong language that is inclusive of every LGBTQIA+ worker. As of 2020, Title VII of the Civil Rights Act of 1964 has been interpreted to prohibit employment discrimination on the basis of sexual orientation or gender identity, and many states and local governments also have laws protecting against workplace discrimination on the basis of sexual orientation and/or gender identity. However, unions can bargain protections that are stronger than the law and are enforceable through the contract’s grievance and arbitration procedures, which are much faster and more efficient than a lawsuit.
Key Points:
“Sex,” “sexual orientation,” “gender identity,” and “gender expression” must be included as protected characteristics to protect all LGBTQIA+ workers against discrimination.
Standards for non-discrimination protections should not be limited by existing law. That is, language like “as prohibited by Title VII” or describing prohibited conduct as “unlawful discrimination or harassment” should be avoided. This is especially true for harassment, because the standard courts use to determine when harassment constitutes a violation of anti-discrimination law is quite high.
The CBA should establish a strong obligation for the employer to prevent all harassment, whether by a colleague, a supervisor, a manager, or non-employee.
Deliberate outing, deadnaming, and misgendering should be explicitly defined as constituting harassment.
Express protections against retaliation for reporting harassment or discrimination should be included.
Employees’ rights to sue under federal, state, or municipal laws should not be waived. Under current law, a CBA that “clearly and unmistakably” requires employees to arbitrate these claims is legally enforceable.
Sample Contract Language:
Employer shall maintain a workplace free from all forms of discrimination or harassment based on a protected characteristic, actual or perceived, of an employee or applicant, regardless of whether the discrimination or harassment is committed by a manager, supervisor, colleague, or non-employee. Protected characteristics shall include: race; creed; color; religion; sex; sexual orientation; gender identity and gender expression; national origin; age; disability; medical history; physical appearance; weight or body size; immigration status; family status or responsibilities; credit information; genetic information; status as victim of domestic violence or stalking; political affiliation; seeking to access, receiving, or contemplating abortion, reproductive healthcare, or gender affirming care; any other trait not here listed that is protected under federal, state, or local law, and/or any intersection of these identities.
Harassment consists of unwelcome verbal, written, or physical conduct based on another person’s actual or perceived protected characteristic. Harassment shall include, but not be limited to, use of epithets or slurs, negative stereotyping, offensive jokes, deliberate failure to use another person’s preferred name or pronouns, disclosure of another person’s sexual orientation, transgender status, or former name without their consent, unwelcome sexual advances, or requests for sexual favors.
Employees who believe they have been harassed or discriminated against in violation of this Article may submit a complaint, either verbally or in writing, to [HR Department], which will conduct an impartial investigation of the allegations. Retaliation of any kind against any employee who submits a complaint or participates in an investigation pursuant to this Article is strictly prohibited. This complaint procedure does not replace or supersede any other procedures available to employees to seek redress under this collective bargaining agreement or any federal, state, or local law.
Benefits
Particularly at a moment when access to gender affirming care is under widespread political attack, it is essential that unions prioritize bargaining benefits and are equitable to and inclusive of LGBTQIA+ workers and workers’ LGBTQIA+ partners and dependents. Employee benefit plans are highly regulated and must comply with a number of laws at both the federal and state level, and the applicability of these laws are actively being litigated in the courts. Further, depending on the sector, size, and industry of the employer, benefits can be administered through a variety of means, including self-insured plans, multi-employer plans, privately insured plans, and state employee health plans. We have provided generalized guidance here, but please note that given the diversity of bargaining circumstances and evolving state of the law, there may be additional considerations or limitations not addressed here.
Gender Affirming Care
“Gender-affirming care” refers to a broad set of services that support a person’s gender identity and expression that can include medical, surgical, therapeutic, and non-medical services. Access to these services are essential for transgender and non-binary people to live open, authentic, safe, and healthy lives.
A key barrier to access for gender-affirming care are transgender exclusions in health plans that exclude healthcare related to gender transition or categorically exclude particular services. Such exclusions are straightforward discriminations against trans workers and likely violate anti-discrimination laws. Unions must fight to remove these exclusions from their health benefit plans.
But even when a health plan recognizes that gender-affirming care is medically necessary, the specifics of what treatments or procedures are covered vary based on the particular plan. Unions should bargain for health plans that use clinical criteria that recognize the medical necessity of the broadest range of gender-affirming care and impose minimal hurdles to receiving coverage for services. For private employers with insured plans, unions can also seek policy riders to cover services that are typically excluded as “cosmetic,” such as facial feminization and jaw contouring, often at little additional cost. Unions can also bargain the establishment of Flexible Spending Accounts and/or Health Reimbursement Arrangements to further assist workers in covering the costs of gender-affirming care that may or may not be covered by the health plan.
Access to gender-affirming care for workers’ LGBTQIA+ minor children can pose particular difficulties given the wave of state legislation banning such care. The Supreme Court is slated to decide, in a case called United States v. Skrmetti, whether a state may ban gender-affirming care for minors without violating the U.S. Constitution. The decision will likely be issued in summer 2025 and will have wide-reaching impacts on the availability of gender-affirming care, particularly in red states. Unions should stay abreast of these legal developments and pursue creative and aggressive bargaining strategies to maintain access to care and protect workers who seek gender-affirming care.
Key Points:
Unions should take care in using precise, inclusive, and affirming language in reference to gender-affirming care.
All transgender exclusions must be removed from health plans.
Note that transgender exclusions likely violate anti-discrimination laws and may violate state health insurance regulations.
Unions should bargain health plans with generous clinical guidelines that provide coverage for the widest range of gender-affirming care services and have minimal pre-clearance and pre-approval hurdles.
For employers with fully insured plans, unions should seek policy riders to include coverage of gender-affirming care that may otherwise be denied as “cosmetic” or not “medically necessary.”
Unions should bargain the establishment of a flexible spending account (FSA) and/or a health reimbursement arrangement (HRA), which can be used to assist with the cost of copays and uncovered gender-affirming care services.
The legal landscape of state laws impacting access to gender-affirming care varies widely and is rapidly changing. Unions should become familiar with their state’s laws and stay abreast of legal developments in order to inform bargaining strategies.
Fertility and Family Building
Many LGBTQIA+ couples rely on fertility services, including intrauterine insemination (IUI) and in vitro fertilization (IVF), in order to grow their family. However, it is common for fertility benefits to have eligibility requirements that discriminate against LGBTQIA+ couples. For instance, until expanding the definition to be inclusive of LGBTQIA+ couples in October 2023, the American Society for Reproductive Medicine (ASRM) defined infertility as the failure to achieve pregnancy within 12 months of unprotected heterosexual intercourse or therapeutic insemination. This definition had the effect of excluding LGBTQIA+ couples until they’ve paid out of pocket for fertility treatments for up to a year, a significant cost not required of heterosexual couples. While some states have laws requiring insurance coverage of fertility treatments, only some of those states use definitions that are LGBTQIA+ inclusive. Whether this inequality in fertility benefits, sometimes known as a “queer tax,” violates anti-discrimination laws is actively being litigated.
LGBTQIA+ couples are also more likely to use surrogacy or adoption to grow their family. Where possible, unions should push to expand benefits to cover or assist with these costs.
Key Points:
Unions should bargain health insurance benefits to cover fertility services that provide equal access to LGBTQIA+ couples. That is, they do not rely on definitions of infertility that exclude or impose burdens on LGBTQIA+ couples.
Note that your state’s law may require insurance plans to cover fertility benefits, and failure to craft benefits to be LGBTQIA+ inclusive may violate anti discrimination laws.
Unions should seek to expand benefits to cover or assist with other family building options, including surrogacy and adoption.
Leave Policies
Many union contracts provide workers with various types of leave. But because these leave policies often depend on defining and privileging certain personal relationships, they too often rely on heteronormative and cisnormative assumptions. It is important for unions to ensure that leave policies are inclusive and equitable for LGBTQIA+ workers.
Bereavement Leave
Contract provisions granting workers leave to grieve the death of a family member often define family in ways that privilege the biological nuclear family. However, for various reasons, including the prevalence of anti-LGBTQIA+ discrimination and estrangement, “chosen family” relationships are often just as important as biological family relationships, if not more so, for many LGBTQIA+ workers. Where possible, unions should bargain language that is inclusive of family relationships beyond the traditional nuclear family unit.
Key Points:
Language should be gender neutral and inclusive of LGBTQIA+ relationships.
It is important that the definition of family be reasonably well defined in order to minimize management discretion and/or contract disputes. However, it is difficult to establish a standard that is both well-defined and inclusive of the diversity of familial relationships. To balance these competing interests, we recommend bargaining an inclusive standard and a non-exhaustive list of relationships that meet that standard.
Requirements of employees to provide supporting documentation to prove relationships should be minimized.
Sample Contract Language:
Employees may elect to take up to five (5) days of paid bereavement leave due to the death of a family member or the loss of a pregnancy. For the purpose of this section, a family member shall include any individual related by blood or affinity whose close association with the employee is the equivalent of a family relationship. Examples of family members include, but are not limited to, the employee’s spouse, unmarried partner, children (including adopted, foster, step, and chosen), grandchildren, great-grandchildren, parents (including adopted, step, and chosen), grandparents, great-grandparents, children-in-law, parents-in-law, siblings (including adopted, step, and chosen), siblings of parents and their spouses, cousins, and household members.
Parental Leave
The United States is one of very few countries that does not require any paid parental leave. Although some states have created paid parental leave programs, at the federal level, the Family Medical Leave Act only requires that eligible employees at covered employers receive up to 12 weeks of unpaid leave. Unions can bargain better standards to provide workers the time off they need to care for and bond with new a new child. When doing so, unions must be sure to consider the unique needs of LGBTQIA+ families.
Key Points:
Language should be gender neutral and LGBTQIA+ inclusive. Use terms like “pregnant employee” and “birthing parent” rather than “mother.”
Eligibility for leave should be inclusive of all parents, not just birthing parents, and account for different family structures and ways a child can join a family (i.e. adoption, surrogacy, and fostering).
Bathroom Access
Adequate access to bathrooms, changing facilities, and locker rooms that are consistent with one’s gender identity is essential to including and respecting the dignity of transgender and gender non-conforming workers. This issue is especially important for unions to take up as restricting bathroom access is being used as a wedge issue for transphobic politicians.
Key Points:
Establishing access to all-gender bathrooms and other facilities is the gold standard for LGBTQIA+ inclusion as it is inclusive of non-binary workers.
For various reasons, it is likely that many employers will continue to maintain some gender-segregated facilities. To the extent that gender-segregated facilities exist, CBAs should explicitly state that workers have the right to use the facilities that align with their gender identity, regardless of their sex assigned at birth.
Please note this may not be permitted under state law for certain workplaces such as K-12 schools or government buildings. Be sure to check whether your state has any transphobic laws regulating bathroom access. If so, establishing access to all-gender facilities is particularly important.
Framing bathroom access as a right of all workers rather than an accommodation for transgender and gender non-conforming workers can be useful in demonstrating how LGBTQIA+ justice benefits all workers.
Sample Contract Language:
Employer shall provide all employees with timely and regular access to clean, sanitary, safe, and functional restrooms employees can use, including all-gender restrooms, and provide adequate access to all-gender equivalents to any facilities that are otherwise segregated by gender. To the extent gender-segregated facilities exist, employees shall have the right to use the facility that best aligns with their gender identity. No employee will be disciplined for needing to use the restroom.
Dress Codes, Uniforms, and Grooming Policies
LGBTQIA+ inclusivity requires that employees have the right to dress and present themselves consistent with their gender identity. Unions must ensure that any employer dress codes, uniforms, and/or grooming policies do not inhibit this right.
Key Points:
Any employer dress code, uniform, and/or grooming policy must be equally applicable to all employees, regardless of gender. Strong non-discrimination language may also be used to prohibit gendered policies, but language explicitly requiring policies be equally applicable to all will provide stronger protection.
Employers also should be prohibited from implementing dress code, uniform, or grooming policies that are equally applicable on paper but have the effect of primarily regulating LGBTQIA+ workers’ appearance.
Depending on the workplace and the needs of the workers, more specific dress and grooming issues, such as particular items and styles of clothing, tattoos, piercings, and hair color, may also need to be bargained over in order to ensure workers’ rights to express themselves at work are protected. Note that these issues are not addressed by the language below.
Sample Contract Language:
Any Employer dress code, uniform, or grooming policy shall be equally applicable to all employees. Employer shall not adopt or enforce any dress code or grooming policy that perpetuates gender stereotypes or has a disproportionate impact on any class of employees defined by race, religion, national origin, sex, sexual orientation, gender identity, transgender status, or disability. Employer shall not adopt or enforce any dress code or grooming policy that infringes upon employees’ right to wear union insignia or otherwise express union support.
Preferred Names in Employer Documents
Respecting the dignity of transgender workers requires using workers’ preferred names and pronouns. But special problems can arise in name and pronoun usage in employer documents, particularly where an employee has transitioned while employed or where their preferred name is different than their legal name. Unions should bargain language that maximizes workers’ rights to demand that employer documents reflect their preferred name and include their pronouns if desired.
Key Points:
Any document that can be viewed by the public or by colleagues must use an employee’s preferred name.
Employers should be obligated to change documents to reflect an employee’s preferred name at the employee’s request.
The right to update one’s name and gender should be based exclusively on the employee’s choice and not require any documentation or certification for all documents where it is not necessary to use an employee’s legal name.
Employees should have the right to update any photos of themselves upon request.
The employer may need to use an employee’s legal name on certain documents (e.g. tax forms). Where this name is different than the employee’s preferred name, the employer should be obligated to keep the employee’s legal name confidential as it may be a transgender worker’s dead name.
Employees should have the right to include their preferred pronouns in public facing documents.
Note that employer documents and records may also have implications for unions’ recordkeeping. Unions should institute similar standards for updating members’ name and gender in their records and ensure that these records align with bargaining unit information provided by the employer.
Sample Contract Language:
Employer shall use employees’ chosen names on all documents that can be viewed by other employees and the general public, including, but not limited to, ID badges, email addresses, email signatures, and organizational charts. Employees shall have the right to include their preferred pronouns in public facing documents. Where an employee’s legal name is different from their actual or chosen name, Employer will only use the employee’s legal name in documents where necessary and ensure the name is kept confidential.
Upon request by an employee, Employer will update all employer records to reflect an employee’s self-determined name and gender to the extent permitted by law. Upon request by an employee, Employer shall update any photographs of the employee, including, but not limited to, ID badges and employee directories.
Employer shall not require any employee to prove their gender identity or transgender status unless required by law. In cases where documentation is required, Employer shall not request any documentation from transgender employees that would not be requested from cisgender employees in similar circumstances.
Hiring Practices
LGBTQIA+ workplace equity requires that LGBTQIA+ workers are being hired. Unions can and should push employers to adopt policies to attract LGBTQIA+ applicants and evaluate whether those policies are successful in achieving a diverse workforce.
Key Points:
Language must prohibit discrimination in hiring on the basis of “sex,” “sexual orientation,” “gender identity,” and “gender expression.” Note that the non-discrimination language provided above also protects applicants against discrimination.
Unions should seek commitments from employers to recruit applicants from marginalized communities, including members of the LGBTQIA+ community. Unions might also bargain more specific recruitment practices, such as posting job openings and/or hosting recruitment events in ways that are designed to reach qualified LGBTQIA+ workers.
Solicitation of demographic information of applicants can be an important tool to evaluate whether the employer’s recruitment and hiring practices are actually producing more diverse applicant pools. However, it is essential to respect everyone’s right to choose whether or not to disclose demographic information such as sexual orientation, gender identity, and transgender status.
Sample Contract Language:
Employer and Union are committed to non-discriminatory hiring practices that will promote diversity and equity in the workplace and provide opportunities for internal advancement for bargaining unit members.
Employer will hire without regard to race, creed, color, religion, sex, sexual orientation, gender identity and expression, transgender status, national origin, age, disability, medical history, physical appearance, weight or body size, immigration status, family status or responsibilities, credit information, status as victim of domestic violence or stalking, political affiliation, any other trait not here listed that is protected under federal, state, or local law, and/or any intersection of these identities.
Employer will seek a diverse applicant pool by actively recruiting women, people of color, LGBTQIA+ individuals, people with disabilities, and members of other historically marginalized groups.
A voluntary demographic survey will accompany all applications that will allow applicants to self-report their race, ethnicity, sex, gender identity, sexual orientation, and disability status. Applicants will have the option to refuse to disclose any demographic information they wish, and such refusal shall not impact the applicant’s consideration in any way. Within 30 days of hiring to fill a position, Employer will provide the Union a report on the demographic composition of the applicant pool.
Transition Support
Some unions have taken the approach of bargaining contract provisions that can be invoked by a worker who wants to transition, is transitioning, or has transitioned in order to support the worker’s transition. Such provisions may empower transgender workers to safely come out at work and provide a more straightforward social process of social transition.
Key Points:
Maximum agency should be given to the transitioning worker wherever possible, including the right to choose whether to invoke the contract provision, absolute discretion over matters involving disclosure, and maximum participation in all decision making.
There is no one-size-fits all approach to transitioning. Each transgender worker has unique needs, preferences, and experiences. Contract language should be flexible enough to accommodate these differences.
Key areas to address may include: whether and how to inform colleagues about the workers’ identity, preferred name, and pronouns; whether and how to provide training to management, supervisors, and coworkers about transgender inclusivity, including anti-harassment obligations and bathroom policies; ensuring affirming access to bathroom facilities (if not already addressed elsewhere); and updating employer documents (if not already addressed elsewhere).
Sample Contract Language:
Any employee who intends to begin gender transition, is currently in the process of gender transition, or has already completed gender transition, regardless of whether the employee has received any therapy or medical care, may request a Transition Support Plan. Upon the employee’s request, and with the full participation of the employee in any negotiations, the employer and the union will mutually agree upon a Transition Support Plan that shall include:
Whether and how coworkers shall be notified of the employee’s transgender status, preferred name, and pronouns. Under no circumstances will the employee’s transgender status be disclosed without the employee’s consent.
Whether to provide training to managers, supervisors, and coworkers, and the content of such training.
Any necessary accommodations to ensure the employee has adequate access to bathrooms and other facilities that affirm the employee’s gender identity.
The process for updating the employee’s name, pronouns, and photograph in all employer documents to the extent permitted by law.
How to encourage non-employees to use the employee’s preferred name and pronouns if such encouragement is desired by the employee.
Gender-Neutral Language
Unions should use gender neutral language throughout their contracts in order to promote gender equity and inclusivity of transgender and non-binary workers. Often, using gender neutral language will have the added benefit of being more precise as well.
Key Points:
For pronouns, we recommend using the singular “they” rather than “he or she” because it is inclusive of non-binary workers. The primary drawback of this strategy is that “they” can be either plural or singular, so special attention should be paid to ensure language remains precise.
Although not essential, some unions opt to include contract language that makes their choice to use the singular “they” explicit, which may aid in certain contract interpretation disputes.
Contract provisions regarding pregnancy, parenthood, and other family relationships are areas where gendered language is particularly common. Use gender neutral terms like “pregnant employee,” “birthing parent,” and “spouse” in order to be inclusive of non-binary and transgender workers and workers in same-sex relationships.
Sample Contract Language:
The employer and the union are committed to gender inclusivity. As part of this commitment, the parties have used “they,” “their”, and “them” as singular, gender-neutral pronouns throughout this agreement.
Labor Management Committees
Building and maintaining an inclusive workplace for LGBTQIA+ workers requires ongoing beyond a single contract negotiation. Thus it may be appropriate to establish a labor-management committee to evaluate policies, make policy recommendations, and respond to new and ongoing equity concerns, or to assign such responsibilities to an existing labor management committee. When establishing an effective labor management committee, unions should be sure to clearly state the purpose and goals of the committee, the authority of the committee, the committee’s composition, the frequency of meetings, how agendas are to be decided, and how minutes are to be reported.
Industry-Specific Considerations
Unions should consider whether there are any industry- or workplace-specific issues that may impact LGBTQIA+ workplace equity and are not addressed here. For instance, Actors’ Equity Association has done excellent work on developing language for LGBTQ+ equity on issues like casting, costumes, and hair and makeup that reflect the unique circumstances of the theatre industry.