Working for Justice

Protections Against Discrimination for Non-Binary Employees

Posted July 14th, 2021 by Alok Nadig in Gender Discrimination and Harassment.

Today (July 14) is International Non-Binary People’s Day.  According to a June 2021 study conducted by the Williams Institute, 1.2 million adults in the United States identify as non-binary.[1]

“Non-binary” is an identity embraced by people who do not identify exclusively as men or women.[2]  A non-binary individual may identify as both a man and woman, somewhere in between, or as falling outside these categories.  Although many non-binary people identify as transgender, not all do.[3]  Some, but not all, non-binary people use “they,” “them,” and “their” pronouns;[4] such pronoun usage is not grammatically incorrect and should be respected.  Indeed, the American Dialect Society voted the singular “they” Word of the Year in 2015 and noted that it was used by writers such as Jane Austen, Geoffrey Chaucer, and William Shakespeare.[5]  While non-binary gender identities are not only a recent phenomenon,[6] media exposure of non-binary individuals in the United States has increased in recent years.[7]

Unfortunately, non-binary people face discrimination in society.  Survey responses about transgender people’s experiences with employment, education, healthcare, and policing indicate that non-binary individuals are “suffering significant impacts of anti-transgender bias and in some cases are at higher risk for discrimination and violence” than transgender men and women who aren’t non-binary.[8]

So, what laws protect non-binary individuals from discrimination in the workplace?

Title VII

In Bostock v. Clayton County, Georgia, 140 S. Ct. 1731 (2020), the Supreme Court held that discriminating against employees because of their sexual orientation or transgender status violates Title VII of the Civil Rights Act of 1964’s prohibition on discrimination because of sex.  See id. at 1754 (“An employer who fires an individual merely for being gay or transgender defies the law.”).  It would therefore appear that non-binary individuals who identify as transgender and are discriminated against in the workplace based on their transgender status can avail themselves of Title VII’s protection against sex discrimination.  As for non-binary people who do not identify as transgender, the implications of Bostock are less clear.  Although the Bostock Court recognized that Title VII protects those who are transgender—a term that can include non-binary individuals—the Court addressed explicitly only transgender people who identify as either male or female.[9]  Nevertheless, at least one commentator has opined that Bostock’s analysis “leaves no coherent way to exclude non-binary people from protections against sex discrimination.”  Merrick T. Rossein, 3 Employment Discrimination Law & Litigation § 27:13 (July 2021 Update).

Americans with Disabilities Act

Whether the Americans with Disabilities Act (ADA) protects non-binary individuals from discrimination depends on the particular circumstances of the situation.  The ADA excludes from coverage “gender identity disorders not resulting from physical impairments.”[10]  But this language need not necessarily place non-binary people outside of ADA protection.  For example, one court has construed the exclusion “narrowly to refer to simply the condition of identifying with a different gender”; under this interpretation, the ADA would still protect against discrimination on the basis of “disabling conditions that persons who identify with a different gender may have—such as . . . gender dysphoria.”  Blatt v. Cabela’s Retail, Inc., No. 14-cv-04822, 2017 WL 2178123, at *4 (E.D. Pa. May 18, 2017).

Consequently, those non-binary individuals with gender dysphoria could find protection under the ADA.  Notably, in 2013 the American Psychiatric Association revised the definition of “[g]ender dysphoria,” to “reflect[] a change in conceptualization of the disorder’s defining features by emphasizing the phenomenon of ‘gender incongruence’ rather than cross-gender identification per se.”[11]  The current version of the Diagnostic Statistical Manual (DSM) explains that “[t]he experienced gender incongruence and resulting gender dysphoria may take many forms.”  Accordingly, non-binary individuals who experience gender dysphoria—defined broadly in the DSM-5—as a disabling condition would appear to fall under the ADA’s purview.  See Blatt, 2017 WL 2178123, at *3–4 (concluding that the plaintiff’s gender dysphoria was a disability because it “substantially limit[ed] her major life activities of interacting with others, reproducing, and social and occupational functioning”).

State and Local Law

State and local law provide protections against discrimination for non-binary people that can significantly exceed those provided by federal law.  For example, the New York City Human Rights Law (NYCHRL) protects against discrimination based on gender identity,[12] and defines gender identity as “the internal deeply-held sense of one’s gender which may be the same as or different from one’s sex assigned at birth” and “may be male, female, neither or both, i.e., non-binary or genderqueer.”[13]  According to guidance from the New York City Human Rights Commission, the  NYCHRL requires employers and covered entities to use the name, pronouns, and title with which a person self-identifies—regardless of the person’s sex assigned at birth, medical history, appearance, or the sex indicated on the person’s identification.[14]  Additionally, Washington, DC has amended its municipal regulations to provide that “[d]eliberately misusing an individual’s preferred name[,] form of address or gender related pronoun” “may constitute evidence of unlawful harassment and hostile environment,” depending on “the nature, frequency, and severity of the behavior,” among other factors.[15]

If you have been discriminated against based on your status as non-binary, you should consult with an attorney to determine what your legal options are.  Sanford Heisler Sharp, LLP has experienced LGBTQ discrimination lawyers in New York, Washington, DC, San Francisco, San Diego, Tennessee, and Baltimore.

Footnotes

[1] Bianca D.M. Wilson & Ilan H. Meyer, Nonbinary LGBTQ Adults in the United States, UCLA School of Law Williams Institute (June 2021), https://williamsinstitute.law.ucla.edu/wp-content/uploads/Nonbinary-LGBTQ-Adults-Jun-2021.pdf.
[2] See Transgender and Non-Binary People FAQ, The Human Rights Campaign – Resources, https://www.hrc.org/resources/transgender-and-non-binary-faq (last visited July 14, 2021).
[3] See Suzannah Weiss, 9 Things People Get Wrong About Being Non-Binary, Teen Vogue (Feb. 15, 2018), https://www.teenvogue.com/story/9-things-people-get-wrong-about-being-non-binary (“Others equate being non-binary with being transgender, . . . .  Some non-binary people feel this definition applies to them, but others don’t.”).
[4] See Sandy E. James et al., The Report of the 2015 Transgender Survey 18, 49 (2016), https://transequality.org/sites/default/files/docs/usts/USTS-Full-Report-Dec17.pdf (surveying 27,715 transgender people and reporting that 29% use “they/them”).
[5] 2015 Word of the Year Is Singular “They,” Am. Dialect Soc’y (Jan. 8, 2016), https://www.americandialect.org/2015-word-of-the-year-is-singular-they [https://perma.cc/F3MD-V296].
[6] See e.g., Gilbert Herdt, Preface, in Third Sex, Third Gender: Beyond Sexual Dimorphism in Culture and History 11, 11 (Gilbert Herdt, ed., 1996) (“For centuries the existence of people who did not fit the sex/gender categories male and female have been known but typically dismissed from reports of certain non-Western societies, while in the Western European tradition they have been marginalized, stigmatized and persecuted.”).
[7] See Jessica A. Clarke, They, Them, and Theirs, 132 Harv. L. Rev. 894, 898–99 & nn. 18–19 (2019).
[8] Jack Harrison et al., A Gender Not Listed Here: Genderqueers, Gender Rebels, and OtherWise in the National Transgender Discrimination Survey, 2 LGBTQ Pol’y J. Harv. Kennedy Sch. 13, 13 (2011-2012).
[9] Ann C. McGinley et al., Feminist Perspectives on Bostock v. Clayton County, 53 Conn. L. Rev. Online 1, 15 (2020).
[10] 42 U.S.C. § 12211(b)(1).
[11] Am. Psychiatric Ass’n, Highlights of Changes from DSM-IV-TR to DSM-5, at 14 (2013).
[12] N.Y.C. Admin. Code § 8-102.
[13] Bill de Blasio & Carmelyn P. Malais, Legal Enforcement Guidance on Discrimination on the Basis of Gender Identity or Expression: Local Law No. 3 (2002); N.Y.C. Admin. Code § 8-102, New York City Commission on Human Rights, at 1, 3 (last updated Feb. 15, 2019), https://www1.nyc.gov/assets/cchr/downloads/pdf/publications/2019.2.15%20Gender%20Guidance-February%202019%20FINAL.pdf.
[14] Id. at 4.
[15] D.C. Mun. Regs. Tit. 4, § 808.2 (2017).

Alok Nadig is an Associate in the New York office of Sanford Heisler Sharp, LLP. He received his Bachelor of Arts degree and Bachelor of Music degree, each magna cum laude, from Northwestern University, where he was elected to Phi Beta Kappa.
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