Does Title VII protect nonbinary individuals from experiencing discrimination at work?
The number of nonbinary individuals in the workplace is thus on the rise, but they continue to experience significant rates of discrimination in the workplace and in the hiring process.
Many nonbinary individuals are repeatedly misgendered, but harassment law does not reach accidental or isolated remarks, nor does it generally require the use of any idiosyncratic pronouns a person might request. See Jessica A. Clarke, They, Them, and Theirs, 132 Harv. L. Rev. 894, 957-58 (2019). Harassment generally must be severe or pervasive to be actionable.
The law surrounding LGBT protections is constantly evolving. In a landmark decision, the Supreme Court in Bostock v. Clayton County held that workplace discrimination based on an individual’s sexual orientation or gender identity is unlawful discrimination because of sex under Title VII of the Civil Rights Act of 1964. Justice Gorsuch wrote in the majority opinion: “An individual’s homosexuality or transgender status is not relevant to employment decisions.”
Because the Court used the binary definition of sex as male or female to demonstrate that discrimination against homosexual or transgender individuals involved in sex discrimination, it is unclear whether Title VII applies to nonbinary or gender nonconforming individuals.
Is there any recourse for a nonbinary individual who's facing discrimination in the workplace?
A person is understood as nonbinary by virtue of sex-based characteristics, so when an employer discriminates against someone because of their nonbinary status, it inevitably discriminates because of sex. Without express application to nonbinary individuals, though, there remains a potential loophole for employers to permissibly discriminate against nonbinary individuals without technically implicating sex discrimination.
The EEOC has likewise ruled that Title VII's prohibition against discrimination based on a person's sex includes gender identity and sexual orientation. The federal agency has further provided guidance about how employers may fulfill EEO-1 reporting obligations for nonbinary employees, providing additional space to explain if any employees identify as nonbinary.
Is it possible that workplace discrimination protections will expand to include nonbinary employees in the future?
22 states currently extend protections based on gender identity, although Texas is not one of them. The most prominent interpretation to encompass nonbinary individuals is the New York City Human Rights Law’s gender discrimination provision that expressly reaches individuals who are nonbinary, gender nonconforming, and intersex.
Nonbinary individuals are seeing more protections under federal and state laws than ever before, but there are many loopholes employers can find to continue discriminatory practices in the workplace. Employees should keep a close eye on legal developments in the discrimination field, as the landscape is ever-changing—and hopefully for the better.
Have you been treated differently than other employees because of your gender?