Should You Ask? Requesting Self-ID Beyond Male or Female

As we begin June and Pride Month, here is a relevant question we continue to get asked in some form ...

Posted by Lauren Buerger, SHRM-SCP, HR Consultant on June 2 2022
Lauren Buerger, SHRM-SCP, HR Consultant
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As we begin June and Pride Month, here is a relevant question we continue to get asked in some form more and more frequently: “Are we allowed to ask employees and applicants to identify beyond just the male or female genders?”

The short answer is: Yes, you are allowed to collect more than the binary genders.

While it is encouraged to embrace gender identity in your diversity and inclusion strategy, there are some important things to consider from a compliance perspective.

Currently, based on their definition of gender identity, the OFCCP and the EEOC’s gender identity protections are only focused on transgender workers, individuals who do not identify with their gender assigned at birth. This means that the OFCCP and EEOC still view gender as binary—either male or female. It does not address those who believe there are options outside the traditional categories and do not identify as either male or female. Therefore, AAP and EEO-1 reporting still remains collecting and analyzing binary genders.

In June 2017, Oregon became the first US state to allow residents to identify as other than male or female on state driver’s licenses. Since then, 21 other states and the District of Columbia issue driver’s licenses with nonbinary gender markers, and the number is increasing quickly.

In order to keep up with the times, but without changing the regulations (yet… more on that later), the OFCCP addressed the question of allowing employees and applicants to self-identify as non-binary in an FAQ posted in 2021. Their recommendation is: “If an employee or applicant chooses to self-identify as non-binary, or as a gender other than male or female, the contractor must still include the individual in its AAP submission. However, the contractor may exclude that individual's data from the gender-based analyses required by OFCCP's regulations. OFCCP's FAQs specify that a contractor may not ask applicants or employees for documentation to prove their gender identity or transgender status.” In other words, the employee would still be included in the race-based analyses, but not included in the gender-based analyses, which still only requires comparison of males and females.

This solution is preferred for the time being since it does not uncomfortably force the individual(s) into one of the two categories. The 2015 U.S. Transgender Survey (which will be updated following their 2022 Survey) found that 33% of transgender individuals indicate they would prefer not to be assigned to either male or female gender. However, the OFCCP’s recommended method of reporting non-binary individuals means your total employee headcounts would not match between the types of analyses and could cause some confusion, so documenting any exclusions is highly recommended.

Note, always remember that employees should still have the option not to answer and contractors are not allowed to ask applicants or employees to prove their gender identity.

There is some good news on the horizon: there have been various measures taken by the EEOC, OFCCP, and multiple state entities to make steps towards more inclusive data reporting.

  • When the 2019 and 2020 EEO-1 Component 1 filing began, the EEOC added a comment box, allowing companies to include employee counts for non-binary gender as “Additional Employee Data”. (See Question 23 of their FAQs)
  • OFCCP’s Director Yang has mentioned on multiple occasions of her intention to modernize regulations, including the collection of gender non-binary data.
  • In March of 2022, the EEOC announced that it will give the option to select a nonbinary gender during the voluntary self-identification questions that are part of the intake process for filing a charge of discrimination.
  • California’s DFEH Pay Data Reports and Minnesota’s Annual Compliance Report are among the state entity required reports that allow for reporting of non-binary employees.

In the meantime, your organization may still look to create initiatives to be more inclusive of gender identity as part of your diversity and inclusion strategy. Here are a few tips to get you started, although a full initiative will go well beyond this.

  • Be sure to ask what is the business rationale for asking beyond compliance? How does it relate to your overall diversity strategy? Will employees feel comfortable answering?
  • Be sure your EEO/AA Statement of Policy is known and seen in the organization, showing your commitment not to discriminate on the basis of gender identity. Also review your anti-harassment language to make sure it includes gender identity.
  • If you will offer options on your self-ID form beyond male and female, change the question from “What is your gender?” to “How would you describe your gender identity?”. Include options such as “Non-binary/third gender” and/or “Prefer to self-describe as ___”.
  • Review and remove any gender specific designations in your employee handbook, processes, forms, website, etc. For example, rather than the statement “An employee must leave his or her work station in the case of a drill”, it would read “Employees must leave their work station in the case of a drill”.
Lauren Buerger, SHRM-SCP, HR Consultant
Lauren Buerger, SHRM-SCP, HR Consultant
Lauren Buerger is an HR Consultant with over five years of experience at Berkshire. She specializes in helping federal contractors comply with affirmative action regulations and developing AAPs and educating clients.

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