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We read with interest the article "Practical Approaches to Making Workplaces Inclusive of Transgender Workers," in the March 18, 2020, issue of the New Jersey Law Journal ("NJLJ"). We want to be clear that this response is not an attack on the authors, who we assume had the very best of intentions in writing the article and sought to provide guidance to make workplaces welcoming and inclusive for transgender and non-binary employees. Nor are we saying that there is anything wrong about non-trans or binary people writing an article on the impact of the New Jersey Law Against Discrimination ("LAD") on a class of protected individuals.

However, we are four of the very few out trans and non-binary attorneys in the state of New Jersey, who are all well-known in the legal community, having written numerous articles and having participated in hundreds of seminars, panels and programs for the NJSBA, NJICLE and other groups too numerous to mention. Based on our personal and professional knowledge of the subject matter, we write to express our disappointment that neither the authors, nor the NJLJ, sought to engage with any of us, or as far as we know with any trans or non-binary attorneys, before publishing the article.

So why should either the authors and/or the NJLJ have reached out to any of the four of us (or other trans or non-binary attorneys) prior to publication? Because, unfortunately, the article contains information that is legally incorrect and, just as importantly, uses terminology that is outdated at best, and which is no longer in keeping with the approach to the issues within the trans and non-binary legal community. As a result, it provides misinformation to practitioners and could cause attorneys to be culturally insensitive to the very population this article was designed to help.

Starting at the most basic level, the definition of "gender identity" used by the authors is simply wrong. "Gender identity" is not a person's "perception" of having a particular gender. As set forth in the November 2019 New Jersey Transgender Equality Taskforce's Report, "Gender Identity means a person's internal, deeply held knowledge of their own gender, regardless of the gender they were assigned at birth. All people have a gender identity, not just transgender people."

Similarly, transgender and non-binary individuals do not have "preferred" names and "preferred" pronouns—we simply have names and pronouns. Our names are not always the same as the name listed on our birth certificates, but New Jersey is a common law name change state, which means that a person can legally change their name merely by consistently using a name over time that is different from the name on their birth certificate. Of course, to change government issued identity documents (birth certificates, driver's licenses, passports, etc.) an individual still needs to go through the process of obtaining a name change order from the court. However, to refer to a person's "legal name" implies that an individual whose birth certificate says "John," but who consistently uses the name "Mary" is doing something illegal— they're not. Similarly, it is culturally insensitive to refer to someone as having a "chosen name." Everyone has a name that was chosen by someone, usually their parents, yet we don't refer to that as their chosen name. It's their name—period. So too is a trans person or non-binary person's name. There may be instances where certain legal documents, such as tax documents, require using a person's name listed on their birth certificate—and that's what it is, a name listed on a birth certificate. The person's name is what they call themselves. It should also be noted that the law requires using a person's name and pronouns, and if an employer does not, or does not require other employees to use the person's name and pronouns, it can potentially result in an actionable claim for either hostile work environment and/or gender identity discrimination under the LAD.

Another mistake that the authors could have avoided was using the term "medical transitioning." Some, but not all, trans people live in accordance with their gender identity, as opposed to the gender they were assigned at birth. When a trans person goes from living in the gender they were assigned at birth to living in accordance with their gender identity, we would refer to this as the gender confirmation process, also commonly referred to as transitioning. However, no medical interventions of any kind are necessary. What any trans person does as part of their personal gender confirmation is unique to them, but it must be emphasized that one can transition fully without any medical intervention whatsoever. Accordingly, if an employer were to inquire about what medical steps a trans employee is going to take as part of their transition, not only have they probably violated HIPAA, they have assumed that there is a medical component to the transition, when there may or may not be.

Perhaps the most egregious unforced error committed in the article concerned the explanation of bathroom usage by trans people. We are sadly not surprised by this mistake, but the bathroom issue is actually very simple. Under the LAD, a person is legally entitled to use the bathroom consistent with their gender identity or expression—period, full stop. There is no need to discuss single user bathrooms, or the establishment of gender non-specific bathrooms. If an employer wants to do that for the entire workforce, they are certainly free to do so. But, assuming an employer has a men's room and a ladies' room, all an employer needs to know concerning what bathroom a person will use is that a person is legally entitled to use the bathroom consistent with their gender identity or expression. A non-binary person can use the bathroom they feel most comfortable using because their gender identity is neither male or female.

In summary, we thank the authors and the NJLJ for showing an interest in the subject matter. It is an important topic that all New Jersey employers need to understand and deal with in accordance with the law. Unfortunately, the article missed an opportunity to correctly, sensitively and in a culturally correct way educate the NJLJ's readership on this important topic.

Robyn Gigl is a partner with GluckWalrath in Freehold. Celeste Fiore is an owner of Argentino Fiore Law & Advocacy in Montclair. Leslie Farber is the owner of Law Office of Leslie A. Farber in Montclair. CJ Griffin is a partner with Pashman Stein Walder Hayden in Hackensack.