New Homeland Security Rule Would Out Transgender People at Work

The National Center for Transgender Equality (NCTE) receives calls regularly from transgender people across the country who have been “outed” to their employers by the Social Security Administration’s (SSA’s) unfair gender “no-match” employment letter policy. We continue to work with individuals to mitigate the impact these letters are having on people’s medical privacy and employment security.

Background

SSA regularly checks to make sure that all persons working in the United States are the actual holders of the SSN that they put on their I-9 form. Further, this practice is meant to ensure that all workers eventually receive the Social Security funds that they are entitled to. In confirming this information SSA sometimes compares an employee’s gender. Because it is difficult to change your gender marker with the SSA this practice has resulted in employers receiving gender no-match letters from the SSA. Because SSA requires proof of irreversible Sexual Reassignment Surgery in order to change a gender marker, NCTE has argued that the SSA should properly regard a person’s gender as a private medical matter.

New Rules Proposed

The Department of Homeland Security (DHS) has recently proposed new rules regarding no-match letters which, if approved in their current form, could cause transgender people increased problems and exacerbate the already serious invasion of medical privacy for many workers. The proposed program is currently designed to verify employees’ work-eligibility status by identifying discrepancies with Social Security numbers and names; however, DHS and SSA often compare more information than necessary, such as gender markers. When the employer sends earnings and tax information to the government, sometimes a person’s gender is also sent. If these comparisons bring up a discrepancy with a person’s records, the DHS or SSA will send what is called a no-match letter to an employer alerting them to the problem. Transgender people have received no-match letters based on gender in the past, and while this new rule does not change that, it adds strict timelines that increase the likelihood of job loss and other problems.

NCTE's Response

In consultation with legal experts, NCTE submitted an official comment on the proposed rule to the Department of Homeland Security on August 14, regarding flaws in the no-match letter system.

NCTE has raised four specific concerns and offered pragmatic solutions to DHS:

1. Gender no-match letters are an invasion of private and privileged medical information. NCTE recommends that gender not be a piece of information that is transmitted or considered between employers and DHS/SSA. Because of SSA’s own policies, a person’s gender is private medical information.

2. The strict 60-day time limit in which all mismatched information must be rectified among the employer, employee, and SSA impose a heavy and unfair burden on transgender people. NCTE recommends that the time period be extended to 90- or 120-days to allow sufficient time for individuals to process a legal name changes on all relevant government and employment documentation.

3. Transgender people and other people who have recently had a legal name change do not have ready access to multiple forms of I-9 approved identification providing their legal name. NCTE recommends that accommodations be expressly written into the no-match letter procedures allowing for differences in identification requirements for people who have gone through legal name changes.

4. The anti-discrimination aspects of the proposed procedure need to be strengthened to explicitly protect transgender people from adverse employment action. NCTE recommends that explicitly protections for persons whose appearance might not match the social norms associated with their gender or their name be included in the proposed rule by expanding the existing protective language regarding foreign appearance or accent.

What you can do?

If you or anyone you know has received a letter based on a gender or legal name no-match issue, please call NCTE and let us know. We can provide advice and/or refer you to appropriate legal counsel. It is important that we track as many instances of these letters having impact on our community as possible.

View the text of the proposed rule change.

View NCTE's official comment.

National Center for Transgender Equality
email:
phone: 202-903-0112
web: http://www.nctequality.org