To celebrate Trans Day of Visibility on March 31, the U.S. Equal Employment Opportunity Commission announced that it will provide a nonbinary gender option on its discrimination complaint form. The gender marker "X" is available for claimants as they make a discrimination suit inquiry in the EEOC's public portal, the Pre-Charge Inquiry Form that is sometimes used in its stead and the Online Spanish Initial Consultation form. Additionally, the gender-expansive honorific "Mx." will be available among the EEOC's prefix options.
"To advance our mission to prevent and remedy employment discrimination, we must serve all workers, including those who do not identify as male or female," EEOC Chair Charlotte A. Burrows said in the press release. "Our public-facing forms should make clear that we respect that diversity." Vice Chair Jocelyn Samuels added this form update "will ensure that the identities of all those who come to our agency for assistance are acknowledged and embraced."
In implementing this change, the EEOC will be following the lead of the Centers for Disease Control and Prevention. Its National Center for Health Statistics issued best practices for defining the "X" gender marker in a clear, inclusive way that prioritizes the privacy and safety of individuals, EEOC said. The fact sheet, which the NCHS published March 31, builds on the work of the U.S. State Department and its allowance of the "X" gender marker on passports starting April 11.
Nodding to the 21 states and the District of Columbia that provide nonbinary options for residents' driver's licenses and birth certificates, the NCHS noted the lack of uniformity across governing bodies' definition of the "X" gender marker. The fact sheet is its effort to standardize that. The EEOC will be embracing the NCHS's two approaches to a third gender option: either "unspecified," to maintain the privacy of EEOC claimants, or "another gender identity," to promote "clarity and inclusion for those who wish to signify that they do not identify as male or female."
The EEOC's announcement was concurrent with the White House's Trans Day of Visibility 2022 updates. Acknowledging the systemic oppression and pervasive violence against the trans community, the White House press release laid out gender-expansive travel measures and mental health resources for trans youth. Along with the EEOC's offering of "X" gender markers, the Biden-Harris administration mentioned trans-inclusive social security tweaks.
Trans people no longer have to show proof of identity — in this case, often doctor's notes — to update their gender information in their social security record. This change will be implemented by the fall, the White House said, and will "significantly" improve trans folks' experience in two areas of HR professionals' purview: trans talent applying for jobs and accessing their retirement funds.
These advancements all build on the foundation of Bostock v. Clayton County, Georgia, a case wherein the U.S. Supreme Court ruled that employment discrimination on the basis of sexual orientation or gender identity is illegal under Title VII of the Civil Rights Act of 1964.
EEOC's change doesn't, however, address concerns about its EEO-1 form. The U.S. government requires that qualifying businesses report employee gender data, but only offers HR departments the binary options of "female" and "male" to categorize their employees.
An EEOC spokesperson told HR Dive in 2021 that government agency is exploring ways to collect expanded gender data on the EEO-1 form as well as others.
