HR Compliance

California Legally Recognizes ‘Non-binary’ as Third Gender, EEO-1 reporting remains the same

By

Kristin Birchell

| Dec 12, 2017

In October, California passed Senate Bill 179 to recognize a third gender option on state-issued IDs, driver’s licenses and birth certificates. The new law also makes it easier for California residents to change their legal gender to male, female or nonbinary. For EEO-1 reporting purposes, employers still will be required to report all workers as either male or female, even if an employee declines to self-identify as one or the other.

As defined by the bill, “nonbinary” is an umbrella term for people with gender identities that fall outside the traditional conceptions of strictly female or male.

Beginning Sept. 1, 2018, applicants no longer will be required to have undergone clinical treatment for gender transition when seeking a judgment recognizing a change of gender. Beginning Jan. 1, 2019, an individual will be able to change their gender on their birth certificate by submitting an application to the state registrar. Also required is an affidavit, made under penalty of perjury, attesting the request for a change of gender is to conform the person’s legal gender to the person’s gender identity.

The new law also requires applicants for a driver’s license (including renewals) to choose from one of the three gender categories.

Effect on employers

Although California employees may identify as nonbinary, this third option currently does not exist on the EEO-1 report, therefore, employers still will be required to report all workers as either male or female on the EEO-1 report, even if an employee declines to self-identify as one or the other. Under current guidance of the U.S. Equal Employment Opportunity Commission, employers will be allowed to record and report the person’s biological sex based on a good-faith observation.

However, California employers must remain mindful of an employee or applicant’s choice to identify as nonbinary. Pursuant to California Fair Employment and Housing Act regulations, employers should request gender information from applicants only on a voluntary basis and should not discriminate against applicants based on their failure to designate as male or female on applications. Furthermore, to avoid potential liability, employers should identify employees by their preferred gender, name or pronoun, including gender-neutral designations.

Other states

Although California is the first state to allow a nonbinary gender option on birth certificates, residents of Oregon and Washington, D.C., recently were allowed the option to select a third gender option on driver’s licenses. In June, Washington, D.C., began offering an “X” option in addition to female and male designations on state identification cards.

Similarly, in July, Oregon began allowing individuals to mark their gender as “X” for nonbinary or unspecified on state driver’s licenses and identity cards. Currently, New York is attempting to pass similar legislation.

Disclaimer: This blog includes general information about legal issues and developments in the law. Such materials are for informational purposes only and may not reflect the most current legal developments. These informational materials are not intended, and must not be taken, as legal advice on any particular set of facts or circumstances. You need to contact a lawyer licensed in your jurisdiction for advice on specific legal problems.

About the Author

Kristin Birchell

As a compliance attorney for Paycom, Kristin Birchell monitors legal and regulatory changes at the state and federal level, with a focus on labor and employment laws, to ensure the Paycom system is updated accordingly. Previously, she served as an attorney at the Oklahoma City law firm Derryberry & Naifeh LLP. Birchell earned a bachelor’s degree and MBA from the University of Central Missouri, and her Juris Doctor from the Oklahoma City University School of Law. Outside of work, she enjoys cooking, hiking, going to the movies and spending time with her husband.

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