Discrimination against non-binary gender people

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Discrimination or prejudice against non-binary people, people who do not identify as exclusively male or female, is a form of sexism,[1][2] as well as a specific type of transphobia.[3] Both cisgender and binary transgender people (men and women), including members of the lesbian, gay, and bisexual communities, can display such prejudice.[4]

Social discrimination[edit]

In the binary gender system, genderqueerness is unintelligible and abjected.[5] 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).[6] 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%).[6] 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, 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.[6]

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.[7] 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.[8]

Workplace discrimination[edit]

United States[edit]

In the United States of America, unemployment rates for transgender people are approximately twice as high as those for cisgender people.[9] In the National Transgender Discrimination Survey[10] conducted by the LGBTQ+ Task Force, it was found that 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.[11]

In a 2012 study by the Center for American Progress, 42% of gay 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.[12]

19% of non-binary trans persons reported job loss due to anti-transgender bias, and 90% reported experiencing anti-transgender bias on the job. 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.[13]:11

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. In 2001 study by the West Lothian Transgender Support Group, it was found that around 50 percent of transgender people do not survive beyond their thirtieth birthday, with most taking their own lives due to discrimination and others losing their lives from violence of cisgender individuals. The study’s statistic is also known as “the 50 percent rule”.[14] With that being said, 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.[15] 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.[16]

Health discrimination[edit]

United States[edit]

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. [17] 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. [18]

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. [19]

United Kingdom[edit]

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. [20]

Australia[edit]

Similarly to the UK, a 2013 survey was designed to examine the healthcare experiences of non binary individuals, and all other members of the LGBTQ community. The survey asked participants to rate their mental and physical health, and how their experiences with psychiatrists, general practitioners, and surgeons were. They rated their experience in terms of comfort, discrimination, and information provided. 10 people given the gender male at birth and 78 given female at birth, yet all identifying as gender diverse or non-binary individuals, completed two separate surveys. 70% of the participants accessed a psychiatrist, and on average rated their experience as just below positive. The individuals assigned female at birth rated their experience worse than those assigned male at birth. After this data was recorded, an analysis of the responses suggested that the positive experiences were due to professional, helpful, knowledgeable, and caring practitioners. Negative experiences were due to the amount of ridiculous or offensive questions asked, and for little to no knowledge on their sexual identity. Overall, these findings indicated that medical professionals are falling short of adequately meeting the needs of non binary individuals. [21]


Legal discrimination[edit]

United States[edit]

Despite being more likely to achieve higher levels of education when compared to the general public,[13]:11 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.[13] Anti-discrimination laws that prohibit discrimination specifically against non-binary individuals do not exist.[citation needed] 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.[13]

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.[22]

Twelve states currently have legislation which bars discrimination based on gender identity.[23] 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.[24][25]

Identity documents[edit]

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,[26] and one third are not able to update their documents post-transition. [27]

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.[28]

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.[29][30]

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."[31][32]

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.[33][34] 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.[35] 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.[36]

United Kingdom[edit]

Non-binary is not recognized as a legal gender in the United Kingdom.[37] 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 to UK residents and linked them back to the National Identity Register database. When the issue of transgender people and their assigned vs. actual gender came up, it was said that transgender people would be issued two cards, each with a separate male and female gender marker.[38] It was also said that eventually the hope for some was that the identity cards would get rid of the gender markers altogether. The Identity Documents Act 2010 made all these cards invalid and called for their immediate destruction.

Canada[edit]

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.[39] 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[edit]

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.”[40]

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.

See also[edit]

References[edit]

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