EEOC to Include Non-Binary Gender Option on Charge Intake Forms

On March 31st, 2022, the U.S. Equal Employment Opportunity Commission (EEOC) announced that it will add a non-binary gender option to its discrimination charge intake forms. Specifically, the non-binary gender “X” marker will be included in voluntary self-identification questions during the intake process. The EEOC hopes that the addition will ultimately allow for greater equity and inclusion for people within the LGBTQI+ community. Accordingly, the EEOC believes that the move supports its mission to prevent and remedy employment discrimination. In particular, the addition will help prevent discrimination on the basis of gender identity. Earlier, the EEOC successfully sued a Detroit company for over $400,000 in a sexual discrimination case.

Gender Inclusivity Initiative

Markedly, the EEOC announced the addition of the non-binary gender option on Transgender Day of Visibility. The addition follows the Biden Administration’s broader initiative to advance equality and visibility for transgender Americans. Overall, the initiative introduces actions to support the mental health of transgender kids, remove barriers to crucial government services, and facilitate the inclusion of transgender people in federal data. In addition, the initiative outlines various other goals towards promoting transgender inclusivity:

• combatting anti-transgender bills at the state level;
• affirming civil rights protections for transgender people;
• expanding access to gender-affirming health care;
• opposing the discrimination of transgender servicemembers; and
• promoting fair housing for transgender Americans.

As a part of the initiative’s push to improve transgender access to services and benefits, other agencies will be incorporating a non-binary gender option as well. These include, the White House Office of Management and Administration and the Department of Education.

Addition of the Non-Binary Gender Option

The EEOC will add the non-binary gender option “X” to its voluntary self-identification questions within the discrimination charge intake process. The EEOC’s charge intake process allows individuals to submit statements of alleged employment discrimination online or in person. According to the EEOC, the binary construction of gender (as either male or female) does not reflect the full range of gender identities. Therefore, the EEOC will add the non-binary gender option to two categories:

1. Voluntary demographic questions relating to gender in the online public portal. Individuals use this portal to submit inquiries about filing charges of discrimination. (The “X” option will also appear in the Online Spanish Initial Consultation Form and Pre-Charge Inquiry Form, which may be used instead of the portal.)
2. Charge of Discrimination Form, which will include “Mx.” in its list of options.

According to EEOC Vice Chair Jocelyn Samuels, “Sexual orientation and gender identity are core aspects of every individual’s identity.” Samuels proposes that the addition of the non-binary gender option to EEOC charge intake forms “will ensure that the identities of all those who come to our agency for assistance are acknowledged and embraced.”