There’s been increasing recognition of individuals who do not identify exclusively as either male or female. Employers need to implement practices for creating a non-discriminatory and accommodating workplace.
These individuals—often described as “non-binary” or “gender non-conforming”—are not a homogenous group and span a wide spectrum of gender identities. A non-binary person might identify as both male and female, as neither, as somewhere in between, or as sometimes one or the other. What non-binary persons have in common is that their gender identity falls outside the strict binary categories of man/male and woman/female, which are typical of many contemporary Western societies.
Note that identifying as non-binary is distinct from identifying as transgender, i.e. having a gender identity that differs from the sex assigned at birth. A transgender person may or may not identify as non-binary, and vice versa. Non-binary gender identity is also independent of sexual orientation and independent of physical or genetic characteristics.
Due to limited research on the topic, it is difficult to estimate the exact number of people who identify as non-binary, but non-binary gender identification appears to be on the rise, especially among young people. A 2017 survey by GLAAD found that 12% of those aged 18-34 identified as something other than cisgender—meaning they in some way do not identify exclusively with the sex they were assigned at birth. This was twice the rate reported those aged 35 to 51 (6%) and four times the rate of those aged 52 or older (3%).
Employee Workplace Protections
With millennials constituting over one-third of the U.S. workforce, it is important for employers to know how to address questions that can arise relating to employees who identify as non-binary.
At the federal level, there is currently no statutory protection against employment discrimination on the basis of gender identity. However, a majority of states, as well as hundreds of cities and counties, have enacted non-discrimination laws protecting gender identity.
Several courts and legislatures have also specifically recognized a right to express a non-binary gender identity. For example, in June 2016, an Oregon state court granted an individual’s petition to legally change the person’s gender from female to non-binary. This is believed to be the first ruling of its kind.
Similarly, in 2019, an Oregon federal court granted a non-binary individual’s petition to have a passport with a neutral “X” gender designation. Since 2017, multiple states have passed legislation to allow gender-neutral driver’s licenses and ID cards.
In light of these developments, it appears likely that an employer’s failure to acknowledge an employee’s non-binary gender identity could create liability for gender-identity discrimination under state or local law.
Best Practices for Creating a Non-Discriminatory, Accommodating Workplace
Employers should ensure that policies and practices in the workplace do not unnecessarily impose or reinforce binary notions of gender, as this can negatively impact non-binary employees’ job satisfaction, affect their productivity, and potentially create legal liability.
First, employers that have not already done so should adopt policies that strictly prohibit discrimination between employees based on any protected class, as well as prohibiting harassment for any reason, including but not limited to gender identity. According to the 2011 National Transgender Discrimination Survey, more than 70% of gender-nonconforming persons surveyed said they had experienced some form of mistreatment at work.
In some ways, accommodating non-binary individuals in the workplace is similar to accommodating transgender employees. For example, non-binary employees may choose to use a name different from what appears on their official ID. Many non-binary individuals also prefer the use of gender-neutral pronouns, such as “they” or “their.” Employers should ensure that supervisors respect the employee’s choice.
A useful way to demonstrate pronoun inclusivity is for supervisors to lead by example and include preferred pronouns in email signatures or when introducing themselves to new employees. This gives employees the opportunity to voluntarily provide their preferred pronouns without singling out non-binary employees.
On employment and benefits forms, best practice is to avoid having a gender question with only male and female options, either by eliminating the question if possible or by providing additional options. Note that in mandatory workforce data reports to the federal EEOC, employers are still required to classify all employees as either male or female. For these surveys, employers should allow employees to self-identify without requiring them to use that gender designation for other purposes.
Gendered facilities such as restrooms and locker rooms can also force non-binary individuals to make difficult decisions that make them feel unwelcome and uncomfortable.
If possible, particularly when renovating facilities or planning new ones, employers should make efforts to include gender-neutral restrooms (either instead of or in addition to gendered facilities) or all-gender locker rooms. Privacy concerns that employees may raise can be addressed with partitioned, single-occupancy changing rooms, shower stalls, and bathroom stalls.
Employers should also take steps to avoid gendered language in favor of gender-inclusive language, both in policy language and in everyday communications. For example, instead of “Ladies and gentlemen,” consider starting announcements with “Hello, everyone.”
Similarly, policy documents can be rephrased to use “their” instead of “his” or “her.” Dress code policies in particular commonly include gendered language, with appropriate attire listed in male and female categories. A more inclusive approach is to have dress codes aimed solely at whether employees are wearing functional and suitably professional-looking attire without regard to gender.
This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.
Shelline Bennett is a partner with Liebert Cassidy Whitmore, one of the largest public employment firms in California. Her practice includes representation in disciplinary appeals, administrative hearings, arbitrations, mediations, and labor relations and negotiations, including serving as lead negotiator at bargaining tables.
Lars Reed is an associate in LCW’s Sacramento office, where he provides advice, counsel and representation to cities, counties, and special districts on matters pertaining to employment law, wage and hour law, and related litigation.