Over the last several years, employers have become much more conscious and pro-active about creating work environments that are diverse and LGBTQ inclusive. While there have been many articles and guidance that have been published to help employers when a transgender employee goes through a gender transition process, most employers are not prepared for how to respond when an employee wishes to identify themselves as neither gender.  The term non-binary is used to describe an individual’s gender designation outside of the two-gender system of male/female.

In 2015, the U.S. Transgender Survey found that 33% of transgender individuals indicated they would prefer not to be assigned to either the male or female gender.  According to various studies, the estimates are that approximately 1.4 million Americans identify as transgender.  Using the percentages indicated by the survey above, that would mean that there are roughly 450,000 individuals in the country that identify themselves as nonbinary.  It would be reasonable to expect that this number will only continue to grow in the future.

In June 2017, Oregon became the first U.S. state and the District of Columbia became the first city to allow residents to identify as other than male or female on state driver’s licenses.  Residents can choose to have an “X” for non-specified rather than “M” or “F.”  California has enacted the Gender Recognition Act which will not only allow a third gender choice on driver’s licenses but also makes them the first state to allow a third gender choice on state identification cards and birth certificates.  The act which goes into effect in 2019, will make it easier for those who fall under the non-binary umbrella to change their gender on state-issued documents.

There are also several countries such as Australia, Denmark, Nepal, and New Zealand that permit nonbinary gender recognition on government documents.  The U.K. commonly recognizes Mx. as a gender-neutral title.  Currently at the federal level in the United States, there is no legal recognition of nonbinary status, but there have been several court cases that have found violations of the law where employers inappropriately treated workers based on gender stereotypes and non-conformity allegations. While nonbinary gender designations are not officially recognized under Title VII, based on court interpretations, employers should ensure that there is no discrimination or adverse action against individuals who identify themselves as nonbinary.

While federal law doesn’t require employers to recognize or track gender designations other than male or female, employers who wish to be proactive may want to consider the following steps to make the work environment more inclusive for individuals who identify themselves as non-binary:

·        Review the organization’s employee handbook, processes, forms, website, etc. to remove any gender specific designations.  Instead of using him/her, he/she, his/her, employers should use their, they, and them. Instead of saying, “An employee needs to turn in his or her timesheet every day”.  It should read, “Employees must turn in their timesheets every day.”  Review forms to make sure that asking for gender identification is really necessary.

·        Employers may want to consider adding more gender choices other than just male and female to internal forms and documents.  Questions on forms can be changed to ““how would you describe your gender identity?” Additional boxes can be added so employees can not only choose just male or female, but also have as a selection “x” for nonbinary, or additional fields that have options such as “prefer not to say” or simply blank to allow for employees to self-identify with a designation of their choice.

·        Other policies to consider updating include EEO, non-discrimination, and anti-harassment to include language protecting individuals who identify as nonbinary. 

·        Training materials for both managers and employees should be updated to reflect changes in policies to reflect nonbinary designations.  Education should be provided to the organization to ensure employees understand that everyone should be treated with respect, dignity, and professionalism.  Mistreatment or retaliation against nonbinary individuals is prohibited.

·        Dress codes should be reviewed to make sure that they are not gender specific. They should be replaced with gender neutral rules and guidelines.

·        Consider creating private unisex bathrooms that are available to any employee at any time.

When it comes to reporting on gender, best practices should be to allow workers to self-identify their gender similar to race and ethnicity.  Currently though, the EEO-1 report only allows for male or female designations.  A non-binary option doesn’t exist.  The guidance for reporting transgendered individuals is that they should be reported as the sex that they choose to identify with. If an employee identifies as nonbinary, organizations are still required to report their gender. In these cases, employers can make a designation using gender-identifying documents provided by the employee, such as ones used for I-9 forms.  Otherwise, employers may use visual identification to designate these employees as either male or female for purposes of completing the EEO-1 form, using the same process as employees who choose not to self-identify as to race/ethnicity.

While this affected population overall remains small, employers should be proactively thinking about their policies and processes and what strategies they may want to consider implementing as this issue of gender designation continues to evolve.  With states and cities beginning to recognize non-binary gender designations, the work environment is starting to change to one that will no longer be one-size-fits-all (male or female) when it comes to gender designations and expression. 

Sources: Fisher Phillips 1/1/2018; Bloomberg BNA 9/27/2017