Preparing for the Non-Binary Employee: Part I

While the term non-binary isn’t new, it is new to many employers and raises some complicated questions.  Most small business employers are aware of the policies they are required to have in place to protect LGBTQ employees from discrimination, but when it comes to non-binary employees there is still a lot to learn.

This blog is Part I of a two-part series. This first article is intended to be an introduction to the terms employers should be familiar with based on recent US Supreme Court cases.  There are some generalities included here for the sake of introducing a complex and evolving concept (consider this more of a 101 or 102 level course vs. a 300 or 400 level).

Part II of this series addresses current laws and some best practices for employers. Regardless of your personal position on the topic, employers should accept that this is coming their way.  A 2017 study by GLAAD shows that 12% of Millennials and 6% of Gen Xers identify as transgender or gender non-conforming, and this number is climbing.

Sex, Sexual-Orientation and Gender – what’s the difference?

Take a look at your employee handbook.  You should find a section that says something to the effect that the company will provide opportunities to employees and applicants without regard to a number of protected classes (i.e. sex, race, color, religion, age, etc.).  While the wording and phrasing may differ dependent upon the laws of your state, based on a recent U.S. Supreme Court case, this section should also include the terms: “sexual orientation” and “gender” (or “gender identity”).

This leads to a common question – what is the difference between sex, sexual-orientation and gender?

The difference between the first two terms is more commonly understood. “Sex” generally refers reproductive organs, specifically the label assigned at birth based on the reproductive organs a person is born with.  “Sexual Orientation” generally refers to a person’s romantic or sexual preference. Common terms associated with sexual orientation include straight, gay, bi-sexual, pan, etc.

While sex and sexual orientation are more commonly understood, it is the last term – gender – that many employers struggle to understand.

What is Gender or Gender Identity?

While the term “sex” refers to reproductive organs, the term gender (or gender identity) goes beyond the reproductive organs and refers to a person’s internal perception, understanding, and experience of themselves and roles in society.

When a person identifies with the gender which aligns with their sex assigned to them at birth, this is referred to as “Cisgender”.   You may see terms such as “Cis Woman” or “Cis Man”. A Cis Man is a person who was born with male reproductive organs and identifies with the male gender.  Similarly, a Cis Woman is a person who was born with female reproductive organs and identifies as a female.   Outside of the Cisgender concept there are an unlimited number of ways an individual may identify, from a gender perspective.

What Does it Mean to Be Binary or Non-Binary?

The concept of “binary gender” refers to two strict categories of gender: male or female.

Non-Binary refers to a person who does not gender identify exclusively as a man or a woman.  Non-binary people may identify as being both a man and a woman, somewhere in between, or as falling completely outside these categories.

How does Non-Binary differ from Transgender or Gender-Fluid?

Transgender” generally refers to having a gender identity that differs from the sex assigned at birth. A transgender person may or may not identify as non-binary, and vice versa. The term solely relates to gender identity and is not used to refer to a specific sexual orientation. A person can be transgender and still identify as straight, gay, lesbian, bisexual, or another sexual orientation.

Non-binary—sometimes shortened to “NB” or “enby”— is used to identify a person who does not identify within the gender binary (male or female). These individuals do not identify as male or female, instead they may identify “as a mixture of the two [binary genders], as something other than male or female or with no gender at all,” Christy L. Olezeski, PhD, director of Yale Medicine’s Gender Program told Health.com. While some non-binary individuals identify as transgender, the two terms are not mutually exclusive.  Similar to transgender individuals, non-binary gender identity is also independent of sexual orientation.

While the term gender-fluid has similarities with the term non-binary, they are not necessarily synonymous.  Gender-fluid generally refers to a person who does not identify with a single fixed gender or has a fluid or unfixed gender identity.  Another term is “gender-expansive” meaning a person with a wider, more flexible range of gender identity and/or expression than typically associated with the binary gender system. Gender-expansive is often used as an umbrella term when referring to people still exploring the possibilities of their gender expression and/or gender identity.

What does this mean for my business?

While you may not currently have any non-binary employees (or you may just not know that you do) employers need to be ready as gender nonconforming policies are becoming increasingly more common.

According to the Washington Post, TIAA has rolled out guidelines suggesting client-facing employees share their pronouns in introductions. Netflix now has recruiters do the same, as well as ask candidates about theirs in initial phone calls, one of several practices to accommodate non-binary employees or applicants. A new program from MasterCard will allow cardholders to swap out birth names that conflict with gender identity with the name they actually use. United Airlines became the first airline to offer non-binary gender booking options, and last year Accenture started giving employees the option of listing preferred pronouns on conference name tags and in the company’s online directory, among other things.

Locally, in 2019 Illinois announced that it will offer gender neutral state ID documents when the Governor signed HB 3534 into law.  The “gender X” option may not be available until 2024, but it will not require medical signature or documentation be provided, making it an option for not just transgender individuals but individuals who identify as non-binary as well.

For more information about non-binary individuals and your business, see Part II of this series.

Should you have any questions about non-binary or other gender related policies for your business or you would like to schedule an initial consultation, please contact Navigant Law Group, LLC at (847) 253-8800 or email us at info@navigantlaw.com.

At Navigant Law Group we know the ropes of the legal system. Business services include: Contract Law, Employment Law, Intellectual Property, WBE / MBE / VBE / LGBT / DBE certification, Commercial Real Estate, and other general Business Law services. Individual services include Estate Planning, Wills and Trusts, Administration, Probate, and Guardianship.

This article constitutes attorney advertising. The material is for informational purposes only and does not constitute legal advice.

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