For generations, gender in the workplace has been black and white, male and female. But as the cultural understanding of gender have grown more technicolor, the laws protecting against gender discrimination and sexual harassment haven’t always kept up. For trans* workers, intersex, and those identifying as gender non-binary or non-conforming, the question may be whether existing civil rights laws protect against genderqueer discrimination at work at all.

In this blog post, I will explore how gender discrimination laws apply to people of varying gender identities, including those identifying as non-binary or genderqueer. I will discuss how New York City’s Human Rights Law differs from the federal Civil Rights Act, and what employers can do to protect their genderqueer employees from harassment or unfair treatment at work.

Keeping Up With Evolving Gender Terminology

For those outside the LGBTQIA community, it can seem that there are new categories every day. It can be difficult to know how to refer to gender non-conforming employees. Here is a baseline to help inform the conversation:

• Sex: A combination of biological, anatomical, or chromosomal characteristics that are used to assign gender. Most children are designated male or female at birth based on their apparent physical anatomy.
• Gender: A person’s actual or perceived sex, generally determined through appearance, dress, self-image, identity, or behavior. This may or may not coincide with the sex assigned at birth.
• Cisgender: A person who self-identifies with the gender and biological sex assigned at birth.
• Transgender: A person who self-identifies with a gender or expresses a gender other than that assigned at birth. This term can sometimes be used as a broad category that includes a variety of genderqueer identities and expressions.
• Transsexual: A medical term indicating that a person’s physical anatomy has been altered to correlate with that person’s self-identified gender. This is sometimes referred to as MTF (male to female) or FTM (female to male).
• Intersex: A medical term indicating that a person’s anatomical or chromosomal markers are not unambiguously male or female.
• Gender Identity: A person’s deeply held sense of gender, whether maleness, femaleness, somewhere in between, or something else not on the spectrum. This is distinct from sexual orientation.
• Gender Expression: The outward facing demonstration of a person’s gender including, for example, name, pronouns, clothing, hairstyle, makeup, behavior, vocalizations, or body characteristics. This may or may not conform to societal gender stereotypes or the person’s sex.
• Sexual Orientation: A person’s attraction to others of one or more sex or gender for romantic or intimate purposes.
• Gender Non-Conforming: An identity or expression that differs from traditional gender-based stereotypes. A person identifying as gender non-conforming may or may not also identify as transgender.
• Gender Non-Binary: An identity or expression that identifies outside the spectrum of maleness and femaleness. This may include aspects of multiple genders.
• Genderqueer or Trans*: References to the broad category of transgender and gender non-conforming individuals while respecting the differences within the category.

No list can be exhaustive. If someone uses a term that is unfamiliar, the best thing to do is to ask them, politely, what it means to them. The same is true for personal pronouns. While many Trans* individuals use he/him/his or she/her/hers, others prefer non-gendered pronouns such as they/they/theirs or ze/hir. A person’s preferred pronouns may or may not be readily determined by their gender expression, so it’s better, and more respectful, to ask.

Genderqueer Discrimination and the Federal Civil Rights Act

Title VII of the federal Civil Rights Act protects against gender discrimination and sexual harassment at work. It does not explicitly protect against discrimination based on gender expression or genderqueer identity. However, the Supreme Court, and a variety of federal circuit courts across the country, have held that discriminating against a person because they do not conform with someone else’s expectations of gender is illegal. Workplace harassment based on a person’s deviation from a cultural gender norm is also illegal. Most of the cases on these issues included transgender individuals. However, the same arguments apply to genderqueer discrimination in the workplace.

New York City Sets the Standard Against Genderqueer Discrimination

The federal government may have left it to the courts to protect genderqueer workers, but some state and local governments have pushed ahead with laws of their own. New York City, in particular, has passed the Transgender Rights Bill which expanded gender-based protections of the local Human Rights Law (NYCHRL) to include the Trans* community. The law prohibits discrimination in employment, public accommodation, and housing on the basis of a broad definition of gender:

“[Gender is defined as a person’s] actual or perceived sex and shall also include a person’s gender identity, self-image, appearance, behavior or expression, whether or not that gender identity, self-image, appearance, behavior or expression is different from that traditionally associated with the legal sex assigned to that person at birth.”

The NYC government website explicitly states this includes intersex individuals. Gender discrimination under the NYCHRL occurs whenever a person is treated “less well than others” because of their broadly described gender. This means that, in New York City, genderqueer discrimination is illegal when it comes to hiring, firing, promotion, shift assignments, benefits, or any other employment discrimination. If an employer is aware of genderqueer harassment, it must take reasonable steps to protect its Trans* employees, which may include firing the harasser. For example, the NYCHRL makes it illegal genderqueer discrimination to refuse to use a person’s preferred name or pronouns.

Employer Best Practices to Avoid Gender Stereotyping and Bias Discrimination

It can be difficult for employers to keep up with the evolving standards around gender discrimination. Even though the federal law does not explicitly require companies to shield their employees from discrimination based on gender expression or identity, choosing to skirt the line can result in complaints to the Equal Employment Opportunity Commission (EEOC), lawsuits, and the loss of talent to more progressive competitors.

Employers are well advised to use the New York City standard as best practices to avoid gender stereotyping and bias discrimination in the workplace. Gender inclusive policies should include:

• Allowing employees to designate their preferred name, pronoun, and title at the time of hire, and to change these at any time
• Enforcing the use of designated names, pronouns, and titles except when legally required to do otherwise, regardless of legal name change
• Allowing access to facilities (including bathrooms) and programs regardless of conformation to sex stereotypes
• Removing gender-specific dress codes or uniforms
• Applying uniform grooming standards regardless of sex or gender
• Writing employee benefits in gender-neutral ways
• Considering requests for accommodations regardless of gender (such as FMLA or parental leave)
• Avoiding requesting medical documentation for gender-nonconforming or transgender employees to receive benefits or accommodations associated with gender or sex
• Adopting strong anti-harassment policies that prevent violence, threats, slurs, or exclusionary behavior

The best way for employers to respect their genderqueer employees is to listen to them. By creating a confidential reporting system, employers can tap into their workers’ understanding of genderqueer life and protect them from unintended genderqueer discrimination.

At Eisenberg & Baum, we understand that gender discrimination does not always fit into convenient buckets. For members of the Trans* community, protections against genderqueer discrimination can hard to explain, and even harder to enforce. From our office in New York City, our employment discrimination attorneys travel nationwide, helping gender-nonconforming workers negotiate with employers who simply do not understand. We are committed to making our office a safe space for you and your loved ones. If you feel like your employer is using your gender identity or expression against you, contact us. We’ll meet with you and help create a strategy that protects you against genderqueer discrimination.