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Jocelyn Boden, 47, managed a Bath & Body Works store in West Valley City, Utah for 3½ years.
In March, she hired a transgender man as a retail associate and, during their first shift together, Boden said she twice referred to the employee as “she” in keeping with her faith as a member of The Church of Jesus Christ of Latter-day Saints, which teaches that gender is an immutable characteristic of a person’s “eternal identity.”
After two associates corrected her, Boden informed her manager she would use the employee’s chosen name but would not “degrade my religious and moral beliefs by lying and calling this biological girl a he,” she told USA TODAY.
Boden was fired. Her termination notice cited "unwanted conduct directed at an individual based on their sex, which includes sexual orientation, gender identity, gender expression or transgender status." She says her termination was religious discrimination.
Boden is at the forefront of a growing conflict between religious freedoms and transgender and nonbinary rights in the workplace.
While some say correct pronoun usage to affirm someone’s identity is a matter of basic respect, others view expectations they will use someone’s chosen gender pronouns as an infringement of the First Amendment’s protection of religious freedom. The standoff has only intensified as the political and legal landscape shifts.
When an employee objects on religious grounds to using a colleague’s pronouns that are not consistent with their sex assigned at birth, “you have a clash of rights,” said Jonathan Segal, a partner with the Duane Morris law firm who advises companies on how to comply with discrimination laws.
“The question,” he said, “is which one gives?”
When employees refuse to use chosen pronouns
According to a discrimination complaint Boden filed with the Equal Employment Opportunity Commission, her supervisor “made no attempt to discuss my religious beliefs with me or to offer an accommodation.”
Bath & Body Works has its employees wear “I belong” pins on their aprons, but “Bath & Body Works is obviously not tolerant of everyone,” Boden told USA TODAY.
Bath & Body Works “strives to foster a workplace where all associates are respected and valued” and does not discriminate “in the treatment or management of our associates on the basis of any protected status,” the company said in a statement.
“While respecting the confidentiality of employment matters, we are confident that additional specifics will emerge in due course that will shed further light on this case.”
In 2020, federal workplace protections were extended to LGBTQ+ employees for the first time when the Supreme Court sided with three employees who were fired because of their sexual orientation or gender identity.
The ruling in Bostock v. Clayton County prompted a wave of claims from religious workers who were terminated for refusing to use coworkers’ identified pronouns.
Those claims got a boost from another Supreme Court decision broadening protections for religious workers and expanding the requirements employers must meet to accommodate their beliefs. In that case, an evangelical Christian and former postal worker, Gerald Groff, alleged he was discriminated against because he refused to deliver mail on Sundays.
“An employer must show that the burden of granting an accommodation would result in substantial increased costs in relation to the conduct of its particular business” to deny a request for religious accommodation, Justice Samuel Alito wrote for the court.
In light of that ruling, a federal appeals court this month revived an Indiana music teacher’s religious discrimination claim against his former employer, Brownsburg High School, over a requirement to use transgender students’ first names and pronouns.
Kluge taught at the school for four years. In 2017, the school district began requiring that teachers use transgender students’ first names and pronouns.
He requested and was granted a religious accommodation to refer to his students by their last names but, after complaints from a few students and teachers, the school district revoked the accommodation and Kluge left his teaching position. The school district declined to comment on pending litigation.
Legal experts say the courts are still sorting out what constitutes undue hardship.
Last year, a federal court ruled that a Washington state counseling and treatment center did not have to face discrimination claims from a Christian former employee because an accommodation exempting her from its pronoun-use policy would have exposed the organization to legal liability.
“The facts and circumstances of each case matter when it comes to determining whether a reasonable accommodation meets the Groff undue hardship standard,” Segal said.
Steven Ressler, who was fired after five years from his job with IKEA in Indiana, says he informed his managers that using they/them pronouns conflicted with his Christian beliefs and requested a religious accommodation to refer to his colleague by their first name instead. One day later, Ressler says he was fired.
"I received a written corrective action form citing my alleged misgendering as the reason for my termination," Ressler said in the complaint he filed with the EEOC and the Indiana Civil Rights Commission.
"IKEA is an international corporation with numerous stores and thousands of employees and Mr. Ressler simply referred to his co-workers in a respectful manner consistent with his beliefs," his attorney Joshua Hershberger said.
In a written statement, IKEA said it was committed “to providing an inclusive workplace where all co-workers are treated with dignity and respect.”
“As a general principle, we do not comment on legal matters. However, in this instance, we feel it is important to clarify that our decision to terminate the co-worker was because he repeatedly violated the IKEA Code of Conduct and related policies regarding respectful and inclusive treatment of all co-workers,” the company said.
'Why trans people feel unsafe at work'
LGBTQ+ advocates say the use of pronouns that align with a person's gender identity is an important signal of acceptance in the workplace for transgender and nonbinary employees who face high rates of on-the-job harassment and discrimination.
Researchers at the UCLA School of Law Williams Institute estimate that 2.1 million Americans are trans adults − whose gender identity differs from the sex they were assigned at birth − a third of whom are trans nonbinary people. In 2021, researchers estimated 1.2 million LGBTQ adults identify as nonbinary, meaning their gender identity and expression fall outside the binary categories of "man" and "woman."
From a cosmetics store in California to a restaurant in Michigan to a hotel in New York, trans and nonbinary employees across the country have filed lawsuits alleging hostile work environments including the repeated use of incorrect pronouns.
Recently, Marz Marcello, 33 and a veteran of the podcast industry, sent a pitch to a podcast offering an expert as a guest. The person responded: “Because you have they/them in your email signature, I will not be engaging any further. YOU ARE EITHER A MAN OR A WOMAN.”
"This is real. This happens. Quietly. In inboxes. In 'friendly' or 'cool' industries," Marcello, who has openly identified as nonbinary for 15 years, wrote on LinkedIn. "Let's be clear: This is discrimination. This is unprofessional. This is why trans people feel unsafe at work."
After they shared the email on LinkedIn, Marcello and their partner received death threats. "It does feel unsafe to just be visible," they told USA TODAY. “But I am proud of who I am and I won’t hide it."
A Williams Institute survey last year found that 82% of trans employees have reported experiencing discrimination and harassment in the workplace at some point in their lives. Nearly 6 in 10 nonbinary employees reported experiences of discrimination and harassment.
Brad Sears, founding executive director at the Williams Institute, said transgender and nonbinary people are especially vulnerable and marginalized groups in the workplace. In surveys, they share stories of coworkers and customers intentionally and persistently referring to them by the wrong pronouns. One Black nonbinary employee from Virginia said their boss regularly called them by their deadname – the name they used before transitioning.
"We often think of discrimination as a discrete event that happens on a certain day," Sears said. "For those who are misgendered in the workplace, the experience can become an almost daily challenge."
Is 'misgendering' unlawful?
Since the Trump administration crackdown on diversity, equity and inclusion policies, some employers – especially government contractors – have retreated from trans-inclusive policies while others have become more cautious.
Donald Trump leaned into anti-trans rhetoric on the campaign trail. Campaign ads attacking Democrats frequently focused on trans issues including one spot with the tagline: “Kamala’s For They/Them. President Trump is for you.”
In one of his first acts in office, Trump issued an executive order recognizing only two sexes, male and female, and directed his administration to eradicate “gender ideology extremism” in the federal government and elsewhere.
Aligning herself with the president's agenda, acting EEOC chair Andrea Lucas has moved to roll back protections for transgender workers and strengthen religious rights in the workplace, dropping lawsuits on behalf of transgender workers, removing the nonbinary gender option from discrimination claim forms and rejecting previous guidance her agency issued that the repeated and intentional use of incorrect pronouns could contribute to a hostile work environment.
“Sex is binary (male and female) and immutable,” Lucas said in a January press release. “It is not harassment to acknowledge these truths – or to use language like pronouns that flow from these realities, even repeatedly.”
The 2020 Bostock ruling that federal civil rights law prohibits discrimination against workers on the basis of their gender identity did not address "bathrooms, locker rooms, or anything else of the kind."
“Whether other policies and practices might or might not qualify as unlawful discrimination," Supreme Court Justice Neil Gorsuch wrote, "are questions for future cases.”
In 2024, the Biden administration weighed in with EEOC guidance that unlawful workplace harassment includes the “repeated and intentional use of a name or pronoun inconsistent with the individual’s known gender identity.”
Some courts agreed, but in May a federal judge in Texas said the EEOC exceeded its statutory authority in "expanding the scope of 'sex' beyond the biological binary" and "defining discriminatory harassment to include failure to accommodate a transgender employee’s bathroom, pronoun, and dress preferences" and gutted the guidance.
“Anti-trans discrimination is still against the law,” said David Glasgow, executive director of the Meltzer Center for Diversity, Inclusion and Belonging at the NYU School of Law. “The tricky question is what exactly constitutes anti-trans discrimination.”
The Jackson Lewis law firm recently told clients it’s unclear whether employers “can or should limit access to bathrooms and locker rooms based on biological sex and whether they must accommodate an employee’s personal pronouns.”
But, even without the EEOC guidance, “courts may still conclude name-calling or repeated intentional misgendering could constitute unlawful harassment” under federal discrimination laws, the law firm wrote.
“As always, and as with most matters, employers can and should continue to require employees to treat everyone – regardless of their sex, sexual orientation, gender identity, religious belief or any other classification – with respect,” it advised.
This article originally appeared on USA TODAY: Tensions flare over gender pronouns as trans rights and religious freedom collide
Reporting by Jessica Guynn, USA TODAY / USA TODAY
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