United States: Non-Binary Gender Identities In The Workplace

Gender fluid, gender variant, non-binary, agender, pangender—these are just a few examples of the more than 50 gender-identity options, beyond male and female, now available to users of Facebook. These genders do not, however, exist in a Facebook vacuum. They exist in the world and, as such, they exist in the workplace. Gender activist Kate Bornstein famously said: "It's a difficult place to live, being neither/nor in an either/or world." The same could be said for the "either/or" workplace. Employers seeking to create a work environment free of discrimination and harassment based on gender identity cannot do so without policies and practices that are inclusive of all the genders.Following Facebook's gender-option update, an online glossary of these gender options emerged on The Daily Beast, which was probably enlightening for the (likely many) Facebook users who had never contemplated a gender selection other than male or female.

For instance, according to the published glossary, agender refers to "someone who does not identify with any sort of gender identity" or "someone who intentionally has no recognizable gender presentation." The terms "genderless" and "gender neutral" are listed as synonyms. Non-binary is described as "a way of describing one's gender as outside the two-gender (i.e., man/woman) system and/or challenging that system." Gender variant is defined as "an umbrella term that refers to anyone who, for any reason, does not have a cisgender identity."

When discussing terminology like that in the glossary, it is important to note that folks within non-binary communities have differing views on how these (and other) gender-focused terms should be defined and which terms should be used in the first place, if at all.

Along those lines, The Daily Beast's glossary of Facebook gender options notes, for example, that some people "acknowledge issues" with the term "gender variant," "as it implies that such genders are 'deviations' from a standard gender, and reinforces the 'naturalness' of the two-gender system."

There is no perfect way to talk about gender in general terms that are fully inclusive of and appropriate for all people. Gender is incredibly complex, non-binary and self-determined; also, it can change, shift and evolve during a person's lifetime.

In most workplaces, even where employers make efforts to be LGBT-competent and inclusive, the realities of gender diversity are often not understood, let alone reflected in employment policies and practices.

Similarly, employers often do not fully appreciate the corresponding legal issues and risks, especially since the majority of the advocacy—and media attention—around workplace protections for gender and sexual minorities is focused on LGBT-identified employees, not employees who identify their genders in non-binary terms.

Nonetheless, employers can and should anticipate increased future advocacy around non-binary gender identities. A recent indication is that more than 100,000 signatures were collected earlier this year for a "We the People" petition asking the White House to "legally recognize genders outside of the male-female binary (such as agender, pangender, gender fluid and others) and provide an option for these genders on all legal documents and records."

The petition further explains: "Legal documents in the United States only recognize 'male' and 'female' as genders, leaving anyone who does not identify as one of these two genders with no option. Australia and New Zealand both allow an X in place of an M or an F on passports for this purpose and the U.K. recognizes 'Mx' (pronounced as Mix or sometimes Mux) as a gender-neutral title."

Depending on the applicable state law and agency rules or policies, individuals in the United States are sometimes permitted to change their gender markers on legal identity documents, but the options are, for the most part, limited to male and female. There may be some exceptions; for instance, the New York State Department of Health has issued short-form birth certificates that have no gender marker on them at all.

Even though states generally do not recognize non-binary gender identities on legal identity documents, legal protections for non-binary-identified employees are emerging at state and local levels.

In states and municipalities that expressly prohibit employment discrimination on the basis of gender identity or gender expression, the definitions of these terms are sometimes broad enough to cover employees with non-binary gender identities. For instance, the Maine Human Rights Act prohibits discrimination on the basis of "sexual orientation," which is defined to include a person's "gender identity or expression."

The regulations further define gender identity to mean "an individual's gender-related identity, whether or not that identity is different from that traditionally associated with that individual's assigned sex at birth, including, but not limited to, a gender identity that is transgender or androgynous." This definition is broad, not conditioned on identification as a male or female and specifically includes androgynous gender identity.

Not every state or local law is as broad. Other definitions of gender identity appear to be more closely tied to identification within the male/female gender binary, so employees who identify as gender variant, agender or otherwise non-binary would arguably not be covered by the laws.

For instance, the Philadelphia Fair Practices Ordinance prohibits discrimination based on gender identity, which the ordinance defines as "self-perception, or perception by others, as male or female, and shall include an individual's appearance, behavior or physical characteristics, that may be in accord with, or opposed to, one's physical anatomy, chromosomal sex, or sex assigned at birth; and shall include, but not be limited to, individuals who are undergoing or have completed sex reassignment."

This definition appears linked to the male/female gender binary and arguably does not encompass individuals who do not identify "as male or female." At a minimum, though, it may be read to include someone who identifies with both genders or someone who does not identify as male or female but who is or was perceived as male or female by others in the workplace. In general, anti-discrimination laws that include gender identity and expression may already extend legal protections to non-binary individuals.

Assuming coverage, employers next should consider the type of behavior or conduct that qualifies as gender-identity discrimination pertaining to non-binary employees and may want to take measures to avoid engaging in or subjecting employees to that type of behavior or conduct. In certain jurisdictions, for example, refusing to refer to a non-binary person using that person's preferred pronoun may constitute discrimination based on gender identity.

In Colorado, the state anti-discrimination law prohibits discrimination on the basis of "having a gender identity or gender expression that differs from societal expectations based on gender assigned at birth." The Colorado Civil Rights Commission Rules and Regulations provide that harassment includes "deliberately misusing an individual's preferred name, form of address or gender-related pronoun." A non-binary person, however, may not use or prefer the pronouns "he" or "she" that are associated with the male/female gender binary and, in fact, may prefer gender neutral pronouns, such as "they," "hir" or "ze."

Having gender identity-appropriate restroom access is essential for gender minorities. As a result, many of the laws and regulations that prohibit discrimination on the basis of gender identity and expression have specific provisions that address employees' access to gender-specific restrooms and facilities.

For example, the D.C. Municipal Regulations regarding gender identity and expression provide that entities covered under the D.C. Human Rights Act "shall allow individuals the right to use gender-specific restrooms ... that are consistent with their gender identity or expression." Thus, under the D.C. law, a transgender woman who identifies and presents as a woman at work must be allowed to use the female-designated restroom.

For a non-binary individual, however, what restroom is "consistent with their gender identity or expression" may not be as straightforward or may change for that person throughout a given workweek.

An increasing number of jurisdictions are recognizing that even where laws provide for restroom access consistent with gender identity or expression, the gender-separated restroom system is still not always comfortable or safe for non-binary people.

For example, the D.C. Municipal Regulations provide that all covered entities "with single-occupancy restroom facilities shall use gender-neutral signage for those facilities (for example, by replacing signs that indicate 'Men' and 'Women' with signs that say 'Restroom')." To effectively implement the law, the D.C. Office of Human Rights began a "Safe Bathrooms" initiative; its website therefore instructs the public as follows: "If you see a single-stall public bathroom at a restaurant or business [that is not gender-neutral], let us know and we will notify the business owner or manager to make sure it gets changed!" In Philadelphia, a recent amendment to the Fair Practices Ordinance requires that all new and renovated Philadelphia city-owned buildings contain gender-neutral bathrooms.

There are more varieties of gender than even Facebook has recognized. Legal workplace protections are continuing to emerge for all the genders. As a result, employees who identify as non-binary—or as a gender other than (or as both) male or female—may have valid legal claims against employers for discrimination based on gender identity or expression, including claims based on, among other things, an employer's failure to use preferred gender-neutral pronouns or to provide gender-appropriate restroom access.

Employers should be aware that there is not necessarily a straightforward, one-size-fits-all approach to creating a work environment free of discrimination and harassment based on gender identity and expression. Generally, employers should avoid making assumptions about the gender identities of their employees and should respect and treat employees in accordance with their expressed gender identities—whether binary or non-binary, fixed or ever-evolving.

Natalie F. Hrubos is an associate attorney in the Employment, Labor, Benefits and Immigration practice group of Duane Morris. She represents and counsels management clients in all aspects of labor and employment law. Her litigation experience ranges from single-plaintiff employment discrimination cases to multistate wage-and-hour class and collective actions. She maintains an active pro bono practice representing low-income transgender and gender- variant individuals in legal name changes and gender marker corrections.

This article originally appeared in The Legal Intelligencer.

This article is for general information and does not include full legal analysis of the matters presented. It should not be construed or relied upon as legal advice or legal opinion on any specific facts or circumstances. The description of the results of any specific case or transaction contained herein does not mean or suggest that similar results can or could be obtained in any other matter. Each legal matter should be considered to be unique and subject to varying results. The invitation to contact the authors or attorneys in our firm is not a solicitation to provide professional services and should not be construed as a statement as to any availability to perform legal services in any jurisdiction in which such attorney is not permitted to practice.

Duane Morris LLP, a full-service law firm with more than 700 attorneys in 24 offices in the United States and internationally, offers innovative solutions to the legal and business challenges presented by today's evolving global markets. Duane Morris LLP, a full-service law firm with more than 700 attorneys in 24 offices in the United States and internationally, offers innovative solutions to the legal and business challenges presented by today's evolving global markets. The Duane Morris Institute provides training workshops for HR professionals, in-house counsel, benefits administrators and senior managers.

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