EEOC Introduces X Gender Markers- What It Means for Employers

On March 31, 2022, the Equal Employment Opportunity Commission (EEOC) announced they would be adding nonbinary gender markers to the self-identification forms that are required to file a discrimination charge with the agency. The agency will add a gender-neutral “x” marker to the existing “male” and “female” gender markers and add a “Mx.” title option to the usual list of gendered titles like “Ms.” and “Mr.” The EEOC’s announcement of these changes coincided with Transgender Day of Visibility, a day meant to acknowledge, celebrate, and remember transgender, nonbinary, and gender non-conforming people who’ve led the fight for equality.

The EEOC’s new change is one of many recent state and federal government efforts to promote inclusivity and visibility and take steps to more accurately reflect the wide spectrum of gender identities. Twenty-one states and the District of Columbia have introduced nonbinary or gender-neutral markers on driver licenses and IDs. Fifteen states and the District of Columbia allow individuals to mark their gender as “x” on birth certificates. The Biden administration also recently announced US citizens will be able to use an “x” gender marker on passports.

These “x” gender markers are officially described as “unspecified or another gender identity.” According to the CDC, this dual definition is beneficial on both the inclusion and privacy front. The first half of the definition, “unspecified” may appeal to those who are concerned about privacy and may not want to disclose their gender, while the second half of the definition, “another gender identity” offers an inclusive option for those whose gender is not accurately represented by male or female gender markers.

In a statement, EEOC Chair Charlotte A. Burrows said this new change fits into the EEOC’s mission to “prevent and remedy employment discrimination.” She also stated that the introduction of “x” gender markers and “Mx.” titles was an effort to better “serve all workers … including those who do not identify as male or female.” This represents an important shift towards official recognition for nonbinary identities and may signal that we will see increasingly specific legal protections for nonbinary individuals in the workplace.

What does this mean for employers?

Because of growing societal acceptance for LGBTQI+ people, more and more adults are comfortable being out as nonbinary in their public lives, including at work. According to a study released in June 2021, there are about 1.2 million adults living in the United States who identify as nonbinary. It is possible you currently  have a staff member at your organization who identifies as nonbinary. It’s important to be educated about what this means, and institute proper training to make sure your company culture is inclusive and respectful of these staff members. Clear Law Institute’s sexual harassment training includes instruction on gender identity, as required by law in some states. Clear Law also offers an Unconscious Bias course to help combat hidden biases in the workplace.

While there is increasing cultural support and efforts towards inclusivity for nonbinary individuals, they still face many of the same issues as the wider, binary-identified LGBTQI+ community at work—including harassment and discrimination. Employers and HR professionals would be wise to make sure any sexual harassment training also educates and addresses issues that may pertain to nonbinary individuals, including misgendering and harassment. Consider updating training materials with gender neutral language (for example, using singular “they” instead of the clunky “he or she”) and laying out expectations for how employees, especially those in management positions, should respect nonbinary identities.

Following the EEOC’s example and implementing gender-neutral options on self-identification questionnaires, including those found in application materials, is a good first step to increasing inclusivity in your workplace. Small things like this can signal to potential applicants that you strive for a respectful workplace that is accepting of all identities, including LGBTQI+ and nonbinary identities.

Encouraging a workplace culture where employees identify their pronouns in their email signature is also a simple step that can go a long way when fostering a work environment that is respectful of transgender and nonbinary individuals. It’s an easy way for employees to introduce how they want to be referred to and heads off potential misgendering before it happens. It also helps to foster a work environment where nonbinary and gender non-conforming employees feel comfortable being true to themselves.

While fostering a workplace that is inclusive and respectful of nonbinary and LGBTQI+ identities should simply be common sense, it’s also wise from a legal standpoint. With Bostock v. Clayton County, Georgia, the U.S. Supreme Court ruled that discrimination on the basis of an employee’s gender identity or sexual orientation can be classified as discrimination on the basis of an individual’s sex—which is unlawful under Title VII of the Civil Rights Act of 1964. While this case doesn’t specifically mention nonbinary gender identities, it is very likely that we will see increasing legal protection for these identities, including specific protections from workplace discrimination and harassment for nonbinary individuals.

How Clear Law Institute Can Help

Unconscious Bias Training: Promoting a Diverse and Inclusive Workplace

If you’re interested in learning more about what your workplace can do to foster a healthy, mutually-respectful, and inclusive work environment, Clear Law Institute offers a variety of training intended to help promote inclusive work environments.

Researchers have found that diverse and inclusive workplaces boost employee morale, increase customer satisfaction, and improve profit margins.  Promoting a diverse and inclusive work environment, however, requires more than just eliminating intentional acts of harassment and discrimination.  Instead, we must also attempt to understand how unconscious bias and implicit bias can impact the decisions we make and our interactions with others in the workplace.

To learn more about the training - you can schedule a free consultation here.