How to achieve an equal workplace for transgender employees in Brazil

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Rodrigo Seizo Takano
Machado, Meyer, Sendacz e Opice Advogados, São Paulo
rtakano@machadomeyer.com.br

Murilo Caldeira Germiniani
Machado, Meyer, Sendacz e Opice Advogados, São Paulo
mgerminiani@machadomeyer.com.br

Júlia Corrêa Rêgo
Machado, Meyer, Sendacz e Opice Advogados, São Paulo
jcorrea@machadomeyer.com.br

The Human Rights Campaign (HRC) Foundation recently estimated that there are more than two million transgender people in the United States, and a 2021 McKinsey study found out that more than half of transgender employees say they are not comfortable being out at work, with two-thirds remaining ‘in the closet’ in professional interactions outside of their own companies.

Transgender people usually face discrimination and a large variety of issues due to their gender identity. The same 2021 McKinsey study found that people who identify as transgender feel far less supported by their managers in the workplace than their cisgender colleagues. The study also reports that it is more difficult to understand workplace culture and benefits and more challenging to get promoted.

In Brazil, close to 1.5 million people are transgender, according to a 2021 Botucatu School of Medicine of the São Paulo State University (Unesp) study, yet only 16.7 per cent have formal jobs, according to a 2022 study of Fundação de Amparo à Pesquisa do Estado de São Paulo.

Brazil’s Federal Constitution has ensured personal rights as fundamental rights to every human being. Personal rights may be defined as a group of rights inherent to the human condition itself and the dignity of the human being. Among those rights, highlighted are the right to life, privacy, image, and physical integrity, as well as name and honour.

Brazil’s Federal Constitution also establishes the social value of labour as a fundamental principle. In this sense, actions that may limit one’s opportunity to work might be considered unconstitutional, especially if such action violates personal rights. The principle of equality, according to which all individuals are equal before the law and should be treated as such, regardless of any characteristic they may have, including in the workplace, has also been enshrined in Brazil’s Federal Constitution.

Addressing discrimination is one of society’s great challenges in modern times, especially within the work environment. Approaching the transgender discussion from a labour and employment perspective highlights situations that may be challenging for companies and employees to adapt to, especially because this is a relatively new discussion and there are no specific Brazilian laws regulating how companies should proceed on a day-to-day basis. The main aspects to be observed by companies when dealing with transgender employees are related to the acts, practices, and behaviours that ensure their personal rights.

Usually, part of a transgender person’s passing process involves the individual changing their given name to a name that fits their gender identity and social gender role. However, the process of legally changing one’s name is not immediate. So, there is a period following the transgender person’s passing process in which individuals present themselves according to their gender identity, but still carry their given name based on their biological sex.

One issue that usually arises in this context is related to employees’ names on badges and company records. Should the company change the name to match employees’ gender identity even though their name has not yet been legally changed?

Another issue which may arise relates to toilets and changing rooms. Should transgender peoples be allowed to use toilets and changing rooms of the gender they identify themselves, or should permission be based on an individual’s biological sex?

Even though there is a lack of legislation on the subject, there are some precautionary measures which may be taken by companies based on case law to ensure a welcoming workplace to all employees, free of discrimination.

Brazilian case law is to the effect that individuals should be treated the way they wish to be, which for transgender people is based on their gender identity and not their biological sex.

Moreover, as of 2016, Decree No 8,727/2016 provides that the entire Federal Administration should adopt the social name of transgender people, upon the individual’s request. The Federal Prosecutor’s Office has also issued Ordinance No 7/2018 mandating that all members of the Federal Prosecutor’s Office have the right to be treated by their social name and to use the toilets compatible with their gender identity. Even though these provisions are only applicable within the Federal Administration and the Federal Prosecutor’s Office, they do provide a guideline on how legislation is likely to evolve in future.

Companies should, therefore, allow employees to choose how they want to be treated by their colleagues and by the company itself, based on their gender identity. This could be done through completing a simple form when employees are recruited, through which they would make the company aware of their gender identity and how people should address them.

Forcing transgender employees to walk around with a badge or to use toilets or a uniform that does not match their gender identity, for example, may also be considered discriminatory behaviour by authorities and might inflict moral damages on transgender people. As most problems arising from other employees working with transgender people come from prejudice and lack of information, providing training about diversity to employees and management is an appropriate way of reducing conflict and potential harassment. Training sessions on gender, sexual orientation, and gender identity diversity are likely to help address potential issues without creating embarrassment. They may also be perceived as positive action from companies in the event of future investigation by Brazilian labour authorities.

This situation may also be addressed through the implementation of a diversity respect policy, which would set out what type of behaviour is expected from employees and what actions would not be tolerated. Policies should also establish disciplinary measures to be applied in the event of noncompliance with internal rules, or any type of harassment.

Ain increasing number of companies have started to implement affirmative action programmes focused on the recruitment of transgender people, aiming at reducing social inequalities and enhancing workplace diversity. This recent move has come about following a worldwide increase in environmental, social and corporate governance (ESG) awareness and practices. It has also occurred because recruiting processes only for black people and women have recently been considered lawful affirmative action due to the lack of such people in leadership positions within companies in Brazil.

Allowing and supporting transgender employees to be who they want to be, as well as treated the way they wish to be treated in the workplace, are the best practices companies can adopt to include and make transgender employees feel comfortable in the workplace. They also help avoid potential labour lawsuits claiming compensation for damages due to discrimination.