Discrimination or prejudice against non-binary people, people who do not identify as exclusively male or female, is a form of sexism, as well as a specific type of transphobia and prejudice against intersex people. Both cisgender and binary transgender people (men and women), including members of the lesbian, gay, and bisexual communities, can display such prejudice.
Social discrimination
In the binary gender system, genderqueerness is unintelligible and abjected.
Individuals who identify as a gender that does not fit the traditional
binary system tend to experience higher levels of social
discrimination. A 2012 study from the National LGBTQ Task Force
showed that genderqueer and other non-binary individuals were more
likely to suffer physical assaults (32% vs. 25%), experience police
harassment (25% vs. 19%), and suffer sexual assault (15% vs. 19%)
compared to transgender individuals who identified within the gender
binary (i.e., trans men and trans women).
Genderqueer individuals also reported higher rates of harassment in
K-12 school (83% vs. 77%), and sexual assault in K-12 schools (16% vs.
11%). This study reported that genderqueer and other non-binary
individuals were more likely to be people of color (30% vs. 23%) and younger (under 45) than binary transgender people (89% vs. 68%).
Responders who identified as neither male nor female were less likely
to be white and more likely to be multi racial, Black, or Asian, but
less likely to be Latin-American/Spanish in origin
compared to those who identified as male or female. The study showed
that despite genderqueer and other non-binary individuals having
received significantly higher education than those who identified within
the gender binary [citation needed], they were more likely to be living
in extreme poverty (under $10,000 yearly) than those who identified
within the gender binary (21% vs. 14%). They were more likely to be
involved in underground economies for income (20% vs. 15%) than those
who identified within the gender binary. Respondents disclosed brutal
effects of discrimination, which had grave impacts, as 43% of
genderqueer participants reported attempting suicide compared to 40% of
transgender individuals that identified within the gender binary.
Social discrimination
in the context of discrimination against non-binary and gender
non-conforming people includes hate-motivated violence and excusing of
such. According to a 2016 study from The Journal of Sex Research,
one of the most common themes of discrimination for genderqueer people
is the incorrect use of preferred gender pronouns. The study labeled
this as 'nonaffirmation', and it occurs when others do not affirm one's
sense of gender identity. Participants within this study also reported
experiencing gender policing. An article from the book Violence and Gender,
states that this experienced violence and discrimination leads to high
levels of stress. This article stated that non-binary participants are
less likely to experience hate speech (24.4% vs. 50%) compared to trans
men and equally as likely (24.4% vs. 24.4%) as trans women, yet
genderqueer/nonbinary participants, along with trans women are more
likely than trans men individuals to be concerned about the safety of
themselves and others.
Workplace discrimination
United States
In
the United States of America, unemployment rates for transgender people
are approximately twice as high as those for cisgender people. In the National Transgender Discrimination Survey
conducted by the LGBTQ+ Task Force, 90% of transgender employees said
they have experienced discrimination of some form in the workplace; 50%
of participants reported being harassed at work and 47% reported an
adverse job outcome. That includes being fired or denied a promotion. In
addition, 32% felt forced to act “traditionally gendered” to keep their
jobs and 22% were denied access to bathrooms of choice based in gender
identity.
78% of those who had transitioned during their time at the workplace
were happy with their choice to do so, and reported feeling more
comfortable at work, although they experienced more discrimination.
Not only does discrimination against transgender people in the
workplace affect transgender employees, but it also affects the entire
workplace team, distracting the victim and the perpetrator from the job
itself.
Transgender individuals in the U.S. often face workplace discrimination
like conflicts related to their bathroom usage, backlash over
transitioning genders and being “misgendered” by coworkers. The Center
of American Progress in 2012 also found that there is also a substantial
amount of public ignorance towards transgender communities, in
comparison to LGB community peers. Because of that, negative
psychological consequences occur as a result like mental health
disparities, higher rates in attempted suicide, and paranoid thinking in
public spaces.
Columbia University’s study in 2003 found that ideas of perceived
discrimination are consistent with models of minority stress. It was
also found that sexual minorities, such as the transgender community,
are vulnerable to physical and mental health difficulties due to an
exposure to chronic life stressors. The study finds that the transgender
community in the U.S. possesses pre-conceived notions of rejection,
hostility and discrimination from gender identities outside their
groups.
According to the NTDS, almost all non-binary persons had
experienced discrimination in the workplace. Their findings show that
being out as a non-binary person negatively affects that person's
employment outcomes. Though non-binary persons have higher unemployment
rates than those who identify with a specified gender, masculine
non-binary persons who still appear male, or are not "passing as female"
generally have a harder time in the work environment.
19% of non-binary trans persons reported job loss due to
anti-transgender bias, a smaller proportion than for other respondents
(27%).
Health discrimination
United States
Transgender
and non-binary peoples generally seek greater care because of the
stigma and the lack of knowledge about their experience on the behalf of
rural physicians.
With that being said, non-binary individuals, and members of the LGBTQ
community are very tentative when sharing their sexual identities to
health care providers in fear of receiving inadequate/unfair treatment.
In the 2001 Journal of the Gay and Lesbian Medical Association, the
study explores factors associated with disclosure. 88 individuals (76%
non-binary) gave responses to a questionnaire asking about their most
recent interaction with health care, and how their overall experience
was. Of this group, more respondents answered that they avoided
answering questions about their sexuality (38%) than honestly disclosing
it to their health care provider (37%). The respondents who avoided the
questions were in agreement that if they gave out their sexual
identity, they would be treated differently or poorly. The overall rates
of disclosure to health care providers are low because of the
perception that health care settings/providers are threatening and
unjust.
In the 2015 International Journal of Transgenderism, a big
portion of non-binary individuals reported to have experienced
discrimination from different types of medical services, including:
doctors, emergency rooms, and ambulances. From the study, it was
discovered that 20.4% of non-binary individuals experienced
discrimination when trying to access doctors and hospitals, 11.9% faced
discrimination when attempting to access emergency rooms, and 4.6% when
attempting to access the service of an ambulance. Based on these
statistics, there is a needed change in how health services treat
non-binary patients to minimize the discrimination on these individuals.
United Kingdom
In
the UK, non-binary individuals also experience health discrimination.
Under the law of the United Kingdom, individuals are considered by the
state to be either male or female, the gender that is stated on their
birth certificate. This means that non-binary gender is not recognized
in UK law. In a 2015 survey conducted by the Scottish Trans Alliance,
three main areas were focused on including, non-binary individuals'
experiences of medical services. When asked if they had ever experienced
problems getting the help that was needed because of their non-binary
identity, 56% said that they had. Some examples of this discrimination
included refusal of surgery, withholding of treatment, discharging from
clinics for being "untreatable," and no treatment due to not having
protocol for non-binary individuals. In addition, more than half of the
respondents answered that they experienced a delay in their treatment
after being honest and open about their non-binary gender identities.
Legal discrimination
United States
Despite being more likely to achieve higher levels of education when compared to the general public,
90% of non-binary individuals face discrimination, often in the form of
harassment in the workplace. Nineteen percent of genderqueer
individuals report job loss as a result of their identities. Anti-discrimination laws that prohibit discrimination specifically against non-binary individuals do not exist. However, Title VII and the current proposed version of the federal Employment Non-Discrimination Act
use such terms as "gender identity" and "gender expression", categories
under which non-binary individuals fall due to the fact that their
gender expression cannot be defined as male or female.
In 2004, Jimmie Smith was terminated from the fire department in
Salem, Ohio after revealing their diagnosis with Gender Identity
Disorder and intentions to undergo a male to female transition. The
district court determined the reason for termination was because of
their "transexuality" and not their gender non-conformity. The case was
appealed to the Sixth Circuit, which overturned that decision and
clarified to courts that under Title VII, sex discrimination was to be
considered broader than only the traditional assumptions of sex.
Twelve states currently have legislation which bars discrimination based on gender identity.[22]
Despite these efforts, non-binary individuals are subject to higher
rates of physical and sexual assault and police harassment than those
who identify as men or women, likely due to their gender expression or
presentation.
Identity documents
According
to the Transgender Law Center, 70% of transgender people are not able
to update their identity documents and one-third of have been harassed,
assaulted or turned away when seeking basic services,
and one third are not able to update their documents post-transition.
In 2016, the U.S. State Department was sued for denying a passport to Dana Zzyym,
who is a veteran, an intersex person and then also identified as a
non-binary person. Zzyym wrote "intersex" on their passport form instead
of male or female, which were the only two available gender fields on
the form. Zzyym was denied the passport, which led to LGBTQ advocacy
organizations filing a lawsuit against the U.S. State Department on
Zzyym's behalf. The advocacy group Lambda Legal argued for gender-neutral terms and a third option on U.S. passports, arguing that the existing passport fields violated the Due Process Clause and Equal Protection Clause
of the U.S. Constitution. The State Department argued that adding
additional gender fields to the passport form would prevent the agency's
efforts to combat identity theft and passport fraud. The Tenth Circuit
Court ruled in favor of Zzyym, the first time in U.S. history that the
federal government recognized non-binary people.
California, the District of Columbia, New York City, New York
State, Iowa, Vermont, Oregon and Washington State have currently removed
the surgical requirement to complete a change on a birth certificate.
In these states, to change the gender on a birth certificate, one must
fill out a standardized form but legal or medical approvals are not
required. In Washington D.C., the applicant fills out the top half of
the form and a health or social service professional must fill out the
bottom half. A person may face obstacles obtaining a court order in
order to make a change to documents in other states. Tennessee is the
only state that has a specific statute that forbids altering the gender
designation on a birth certificate due to gender surgery, while Idaho
and Ohio have the same prohibition, but via court decision rather than
by statute; and in Puerto Rico, a U.S. territory, a court ruled that
gender markers could not be changed on identity documents under any
circumstances.
In California, the Gender Recognition Act of 2017 was introduced
in the State Senate in Sacramento in January 2017, and signed into law
by governor Jerry Brown on October 19. The law recognizes a third gender
option known as "non-binary" which may be used on state-issued
documents such as driver's licenses to more accurately reflect a
person's gender. Senate bill SB179 was originally drafted by State
Senators Toni Atkins and Scott Wiener.
The law also makes it easier for existing documents to be changed, by
removing requirements for sworn statements by physicians and replacing
it with a sworn attestation by the person seeking to make the change to
their documents. The Executive Director of Equality California
commented, "It is up to an individual—not a judge or even a doctor—to
define a person's gender identity."
The first two U.S. citizens to receive a court decreed gender of non-binary were in Oregon and California. In Oregon, Jamie Shupe was able to obtain a non-binary designation in June 2016 after a brief legal battle. Following in Shupe's footsteps, California resident Sarah Kelly Keenan was also able to legally change their gender marker to non-binary in September 2016.
After both Shupe and Keenan had success with their cases, more people
have been inspired to take on the legal battle of changing their gender
to a non-binary marker. With the help of organizations such as Intersex & Genderqueer Recognition Project
dozens of these petitions have been granted and additional states have
changed regulations to provide a third gender option on state ID, birth
certificates, and/or court orders.
United Kingdom
Non-binary is not recognized as a legal gender in the United Kingdom. The Gender Recognition Act 2004 allowed people to apply to the Gender Recognition Panel
for a change of gender after living as the gender they wished to show
on all their legal documents and being given a diagnosis of gender dysphoria
by at least two health professionals. However, this change of gender
only allowed for a change from male to female or vice versa.
In 2006 the Identity Cards Act 2006
was introduced, which issued documents with binary gender markers to UK
residents and linked them back to the National Identity Register
database. The Identity Documents Act 2010 made all these cards invalid and called for their immediate destruction.
Canada
In 2002, the Northwest Territories was the first of Canada’s provinces to explicitly include gender identity as a protected group from discrimination under the law, followed by Manitoba in 2012. By 2015, every Canadian province and territory had included similar changes to their discrimination laws.
In 2017, Canada passed Bill C-16
which formally recognized non-binary gender people and granted them
protection under the law towards discrimination on the grounds of
“gender identity” and “gender expression.”
Australia
The
Sex Discrimination Act of 1984 did not explicitly protect non-binary
persons from discrimination until the Sex Discrimination Amendment
(Sexual Orientation, Gender Identity and Intersex Status) Act of 2013,
which prohibited any discrimination on the grounds of "gender identity"
and "intersex status". This amendment also removed the use of "other"
and "opposite sex" in exchange for broader terms like "different sex".
In 2014, the Australian High Court legally recognized non-binary as a category for people to identify with on legal documents. After Norrie May-Welby
made a request for a third gender identity on legal documents and was
eventually denied, Norrie chose to take the matter up with Australia's Human Rights Commission and their Court of Appeal.
After a four-year long legal battle beginning in 2010, Norrie finally
won the case. From this and the legalizing of the matter in New South Wales, the Australian Capital Territory
made the decision to pass a law which recognized non-binary identities.
Several other states and territories followed suit afterwards.
