Along with social marginalization, nonbinary trans people continue to face discrimination in professional settings. Often, they slog through assumptions or microaggressions about their gender presentation. They face the terror of being deadnamed in meetings or that awkward, painful moment where they're openly misgendered. And some legal practices ensure trans folks' identities are erased.
In particular, the U.S. Equal Employment Opportunity Commission requires that qualifying businesses report employee gender data. No problem, except the agency's forms only offer "female" or "male" as gender options. They lack the third option of "nonbinary" or additional, gender-diverse options.
Cassie Whitlock, BambooHR's director of HR, recently called for the commission to update its gender fields on EEO-1 forms and annual contribution wage reports. In an October op-ed, penned for Quartz at Work, Whitlock explained how this trans exclusion saddles HR with the impossible.
"What that means for mandatory federal reporting is that companies' HR teams must, to the best of their abilities, identify any employee who does not self-identify," Whitlock wrote.
This call to action originated with BambooHR's own problematic practices. In May 2021, Change.org employees followed up on multiple calls for the software company to expand the gender options on its forms — through a Change.org petition, of course.
The rift stemmed from BambooHR's desire to adhere to EEOC forms. Nevertheless, Whitlock's department consulted with trans and nonbinary folks and by mid-May, Bamboo HR announced the addition of a nonbinary option. Within that option are subcategories, so employees can identify themselves even more accurately. Now, BambooHR is pushing the EEOC to do the same.
HR Dive reached out to the agency for comment and Christine Saah Nazer, spokesperson for the EEOC's Office of Communications & Legislative Affairs, said the commission "is continuing to explore ways to collect expanded gender data on EEO-1 and other forms."
"Advancing full equality for LGBTQ+ employees at work has been a key priority for EEOC for some time," Nazer added. "The agency is pleased that its work on these issues contributed to the Supreme Court's landmark decision last year in Bostock v. Clayton County, which recognized that discrimination based on sexual orientation and gender identity is prohibited under the federal laws EEOC enforces."
Nazer encouraged HR pros to report data on nonbinary employees in the comment section of the current EEO-1 form. She also pointed to the EEO-1 FAQ for pro tips on reporting gender data outside the binary.
In some ways, Nazer's response to HR Dive echoes Whitlock's second call to action in her op-ed: that HR professionals take action within their own organizations. "EEO-1 reporting companies do not have to wait on the government to create better onboarding options for their employees," Whitlock said, adding that gender-inclusive forms demonstrate to new hires how seriously their new workplace takes inclusion.
This leads to Whitlock's other call to action, which is that companies keep that energy going. Policies, programs, spaces, language — all of it has the potential to communicate and promote greater understanding, she said.
The EEOC shifting its policies isn't the finish line, Whitlock added, but it would be a start. When asked whether the commission has a timeline on expanding its gender options on forms, the spokesperson highlighted that it is in the research phase. "Collecting data in this area can help further the agency's mission of preventing and remedying employment discrimination, and the agency appreciates public input as we examine the best way to do so," she said.
Nazer pointed to The Paperwork Reduction Act of 1995, which requires federal government agencies to obtain approval from the Office of Management and Budget before requesting or collecting information from the public.
"Currently EEOC does not have authorization to require the collection of nonbinary gender data under the PRA," she explained. "Any revisions to the information collected on the EEO-1 form require a vote of the full Commission followed by approval of an information collection request by OMB." Essentially, HR pros shouldn't hold their breath.
In the meantime, as Whitlock said, people teams and corporate leaders can keep striving for every employee to feel empowered in the workplace.