Does Title VII protect nonbinary individuals from experiencing discrimination at work?
Nonbinary people have a gender identity that does not fit into the male/female binary. According to The Trevor Project’s 2019 National Survey on LGBTQ Youth Mental Health, one in four LGBT youth identify as nonbinary.
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.
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.
Since harassment law doesn't necessarily cover isolated remarks or require use of idiosyncratic pronouns a person may request, it is important to talk about nonbinary employee rights as a team in the workplace.
Is there any recourse for a nonbinary individual who's facing discrimination in the workplace?
There is a compelling argument that there is no coherent way to interpret the Bostock v. Clayton County decision as excluding nonbinary individuals from protection, since the decision applies with equal force to nonbinary people as it does to transgender men and women.
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.
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.
Nonbinary employees are seeing more protections under federal and state laws, but the potential for discrimination loopholes shows that there's need for more discussion and expansion of protection to nonbinary employees.
Is it possible that workplace discrimination protections will expand to include nonbinary employees in the future?
Lower courts are more frequently discussing the need to expand discrimination protection to nonbinary employees. The Sixth Circuit in EEOC v. R.G. & G.R. Harris Funeral Homes recently stated “discrimination because of a person’s transgender, intersex, or sexually indeterminate status is no less actionable than discrimination because of a person’s identification with two religions, an unorthodox religion, or no religion at all. And ‘religious identity’ can be just as fluid, variable, and difficult to define as ‘gender identity;” after all, both have ‘a deeply personal, internal genesis that lacks a fixed external referent.”
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.
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.
Are you experiencing discrimination in the workplace as a nonbinary employee?
Have you been treated differently than other employees because of your gender?
Have you been treated differently than other employees because of your gender?
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