Discrimination towards non-binary gender persons

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Discrimination or prejudice towards non-binary people, people who are not exclusively masculine or feminine, is a form of sexism[1][2] and can be identified as a type of transphobia.[3] Both cisgender and binary transgender people (men and women), including members of lesbian, gay, bisexual, and transgender (LGBT) communities, can display such prejudice.[4] Discrimination against third gender, agender, and other non-binary people demonstrates the existence of a gender hierarchy in societies which consider genders outside the binary to be "other".

In the binary sex/gender system, genderqueerness is unintelligible and abjected.[5] A 2008 study in the National Transgender Discrimination Survey showed that genderqueer and other non-binary individuals were more likely to suffer physical assaults (32% vs. 25%), experience police brutality and harassment (31% vs. 21%), and opt out of medical treatment due to discrimination (36% vs. 27%) compared to transgender individuals who identified within the gender binary (i.e., trans men and trans women). This study also found that they were more likely to be people of color (30% vs. 23%) and younger (under 45) than binary transgender people (89% vs. 68%).[6]:22 In another study conducted by the National LGBTQ Task Force,[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. 20% of non-binary individuals lived in the lowest household income category.[7]

Social discrimination[edit]

Social discrimination in the context of discrimination against non-binary and gender non-conforming people takes on the form of bigenderism (not to be confused with being bigender). Bigenderism accepts the rules of gender and does not include variations, exceptions, nor deviations. These rules include: there are two and only two genders; genitals are the essential signs of gender; everyone is one gender or the other; the male/female dichotomy (also known as heteronormativity) is a "natural one".[8]

There are two major implications of bigenderism and the social discrimination it produces: one, the excusing of hate-motivated violence and two, hate-motivated violence itself. According to the National Coalition of Anti-Violence Programs (NCAVP), intimate partner violence (IPV) and hate-motivated violence are among the most common forms of violence affecting the genderqueer and other LGBTQ communities. In one study of the help-seeking habits of victims of IPV and other hate-motivated violence, of the 993 respondents of different race and socio-economic statuses, 45.9% reported having experienced IVP or more serious kinds of partner abuse, and 42.8% reported having experienced hate-motivated violence (will add source in 10 mins). Because of social discrimination as a result of bigenderism, there are a high percentage of non-binary and other people of the LGBTQ community who do not seek help. Of those who experienced IVP (the aforementioned 45.9% of 993 respondents), 57.1% did not seek help for various reasons, and of those who experienced hate-motivated violence (42.8% of 993), 73.9% did not report the incident to the police. Roffee and Waling discovered multiple boundaries when conducting a study into hate speech and violence against LGBTI people, due to the confronting nature of the interviews, which had the potential to trigger the participants. Further than this, there is a potential that people would not have elected to participate for fear of being triggered. Once completing the study, Roffee and Waling (2016) discovered that many of the participants' accounts of victimisation could have warranted police involvement, though the participants had refrained from this for personal reasons.[9]

Furthermore on social discrimination against non-binary or gender non-conforming people leading to hate-motivated violence as a result of bigenderism, the act of using a public restroom becomes a choice between denying one’s own identity and facing social censure. Either the non-binary or gender non-conforming person has to make a public declaration of the gender with which they do not identify or they face physical violence or, in some cases, death. Similar cases of hate-motivated violence can also be found in LGBTQ students who face hostile environments in schools and are forced to choose to either stay in said hostile environment to get an education or forgo their education for their own safety.

Legal discrimination[edit]

United States[edit]

Despite being more likely to receive 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. 19% of genderqueer individuals report job loss as a result of their identities.[10] Because non binary identities are not well known in the modern US, anti-discrimination laws that outline prohibition of discrimination for non binary individuals specifically does 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.[10]

Twelve states currently have legislation which bars discrimination based on gender identity.[11] Despite these efforts, non-binary individuals have 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.[6][12]

The State Department was sued for denying Dana Zzyym, a veteran and an intersex and non-binary person, a passport. Zzyym wrote “intersex” on their passport instead of the only two options of male or female. Zzyym was denied the passport and shortly after LGBTQ advocacy organizations filed suit on Zzyym’s behalf against the U.S. State Department. The advocacy group argued for gender-neutral terms and a third option on U.S. passports. [13] Paul Castillo represented Zzyym from Lambda Legal that stated the action violated the Due Process and Equal protection clauses in the U.S. Consitution. [14] The State Department made the argument that it would prevent the efforts against identity theft and passport fraud for their system to validate the identity and citizenship of passport applicants. The Tenth Circuit Court ruled in favor of Zzyym, the first time in history the federal government recognized non-binary people. [15]

California, the District of Columbia, New York City, New York State, Iowa, Vermont, Oregon and Washington State have currently removed the surgical requirement completely to change a birth certificate. To change the gender on a birth certificate, one must fill out a standardized form without legal or medical approvals in the states above. In Washington D.C. where there is a new system, the applicant will fill out the top half of the form and then have a health or social service professional to fill out the bottom half. A person may face the obstacles to obtain a court order to make a change on documents in some states. Tennessee is the only state that has a specific statue that forbids the correction of gender designations on birth certificates. Idaho and Ohio prohibit a correction in a court decision or agency practice. Puerto Rico also ruled that gender markers couldn’t change identity documents under no circumstances. [16]

California is implementing anti-discrimination laws and currently with a specific bill. The Senate Bill, SB 179, The Gender Recognition Act of 2017 in California, is intended to create a third gender option known as non-binary. It will be recognized on state-issued ID cards, birth certificates and court documents. Senator Atkins (D- San Diego) and Senator Wiener (D-San Francisco) drafted the bill. The Equality California and the Transgender Law Center are assisting the Senators in the drafting of the bill and to support it. The bill will streamline the processes for Californians to apply to the state to change identification documents to a third gender option. The Executive Director of Equality California stated, “It is up to an individuals-not a judge or even a doctor- to define a person’s gender identity.” The bill will assist non-binary people to go through airport security, voting and applying for a bank account. &0 percent of transgender people are not able to update their identity documents and one-third of transgender people have been harassed, assaulted and turned away from seeking basic services when they identify as a third gender. [17]

Currently, only two US citizens are believed to be legally registered as non-binary. In Oregon, Jamie Shupe was able to declare their gender as non-binary in June 2016 after a brief legal battle and successfully granted petition for a legal change in gender.[18] Following in Shupe's footsteps, California resident Sarah Kelly Keenan was also able to legally change her gender marker to non-binary in September 2016.[19] 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. There are hopes that this will lead to the normalization of non-binary as a legal gender, but there are still no federal laws in place to allow for such a thing.

United Kingdom[edit]

Non-binary is not recognized as a legal gender in the United Kingdom.[20] 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. inner gender came up, it was said that transgender people would be issued two cards, each with a separate male and female gender marker.[21] It was also said that eventually the hope for some was that the identity cards would get rid of the gender markers all together. The Identity Documents Act 2010 made all these cards invalid and called for their immediate destruction.


In 2014, the Australian High Court legally recognized non-binary as a category for people to identify with on legal documents. After a citizen named Norrie 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. Though this is a step in a positive direction for non-binary identifying Australians, the law currently lacks concise policies on marriage licenses and recognition of partnership for non-binary people. Because of this, Australians registered as non-binary may not be able to legally marry.

In addition to marriage issues, the non-binary marker for Australian citizens requires proof of gender confirmation surgery. Because non-binary people live outside of the gender binary, they may not wish to obtain gender confirmation surgery. The people not wishing to do so ultimately will not be able to register as non-binary until this portion of the law is amended.[22]

Health discrimination[edit]

United States[edit]

In the 2008 National Transgender Discrimination survey, it was discovered that 14% of gender-nonconforming individuals reported discrimination in medical care, though 36% were "more likely to avoid care altogether when sick or injured because of the fear of discrimination".[7] 43% were likely to have attempted suicide compared to the U.S. rate of 1.6%.[7] A survey conducted among Rural U.S. LGBT populations, suggested that transgender & non-binary patients were three times more likely to find health care providers that have other LGBT patients. They were also three times more likely to drive over an hour out of the way to visit their health care provider due “to the fact that in the last year, one in ten had visited an LGBT-specific health care clinic, which are often located in urban areas.” [23] Transgender & 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.[23]

United Kingdom[edit]

In a similar survey conducted by UK Trans Info, the vast majority of non-binary responders reported "fear of treatment being denied" as the main deterrent for not seeking healthcare. Many reported anxiety over having to deny their identities or "pretend to be someone [they are] not" in order to receive treatment. As a result, 20% reported self-medicating as an alternative to seeking healthcare. In the same survey, it was reported that most non-binary individuals use National Health Services compared to private practices. 46% of the individuals who used NHS presented themselves as binary to receive treatment and 72% did so while using private services.[24]


Elderly care in Australia alienated non-binary individuals using strictly male or female practices and social activities before recent changes in their healthcare system. In an attempt to create a more equitable experience for LGBT and gender non-conforming elders, the Australian Government created "the National LGBTI Ageing and Aged Care Strategy (the Strategy) the first federal strategy in the world focused on older 'LGBTI' populations" in 2012. The Sex Discrimination Act of 1984 was also updated in 2013 to include sexual orientation, relationship status, gender identity, and intersex status. This act banned any 'faith-based discrimination' that may target transgender or non binary gender peoples in federal care service.[25]

Educational Discrimination[edit]


Discrimination against non-binary persons has increased in recent years due to negative school environments for the LGBTQ community. This discrimination stems from heteronormativity and years of the same school systems. To fuel this heteronormativity, school culture, policies, and administrations all attribute to this increase in discrimination. Students who do not adhere to the binary system are subject to bullying, harassment, and micro aggressions in many schools.

Federal Protection:

Title IX was added to the Education Amendments of 1972 to protect people from discrimination of sex in public and federal education programs. Title IX specifically states: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” Enforcement of Title IX runs through the U.S. Department of Education’s Office for Civil Rights.

Any school or educational program receiving federal funds must operate their institutions in a nondiscriminatory manner. Discrimination against the LGBTQ community can leave a negative impact on the physical, psychosocial, and educational outcomes for LGBTQ youth compared to the heterosexual and cisgender communities. To counter, a positive school climate can buffer the effects of homophobia, confusion, and heterosexism on LGBTQ youth in the United States today.

See also[edit]


  1. ^ Roger J.R. Levesque (5 September 2011). Encyclopedia of Adolescence. Springer. p. 2641. ISBN 978-1-4419-1694-5. Retrieved 20 September 2012. 
  2. ^ Frederick T.L. Leong; Wade E. Pickren; Mark M. Leach; Anthony J. Marsella (1 November 2011). Internationalizing the Psychology Curriculum in the United States. Springer. p. 163. ISBN 978-1-4614-0072-1. Retrieved 20 September 2012. 
  3. ^ Norton, Jody (1997). ""Brain Says You're a Girl, But I Think You're a Sissy Boy": Cultural Origins of Transphobia". International Journal of Sexuality and Gender Studies. 2, Number 2 (2): 139–164. doi:10.1023/A:1026320611878. 
  4. ^ Kelsie Brynn Jones (February 2, 2016). "When Being Trans Is Not Trans Enough". Huffington Post. Retrieved June 4, 2016. 
  5. ^ Hale, J.C. (1998) "...[O]ur embodiments and our subjectivities are abjected from social ontology: we cannot fit ourselves into extant categories without denying, eliding, erasing, or otherwise abjecting personally significant aspects of ourselves ... When we choose to live with and in our dislocatedness, fractured from social ontology, we choose to forgo intelligibility: lost in language and in social life, we become virtually unintelligible, even to ourselves..." from Consuming the Living, Dis(Re)Membering the Dead in the Butch/FtM Borderlands in the Gay and Lesbian Quarterly 4:311, 336 (1998). Retrieved on 2007-04-07.
  6. ^ a b c Jack Harrison; Jaime Grant; Jody L. Herman (2011–2012). "A Gender Not Listed Here: Genderqueers, Gender Rebels, and Otherwise in the National Transgender Discrimination Survey" (PDF). LGBTQ Policy Journal. Harvard Kennedy School. 2. 
  7. ^ a b "A Gender Not Listed Here: Genderqueers, Gender Rebels, and OtherWise in the National Transgender Discrimination Survey - The Task Force". The Task Force. Retrieved 2015-10-21. 
  8. ^ Gilbert, Miqqi Alicia (2009). "Defeating Bigenderism: Changing Gender Assumptions in the Twenty-First Century". Hypatia. 24 (3): 93–112. JSTOR 20618166. 
  9. ^ "James Roffee & Andrea Waling Rethinking microaggressions and anti-social behaviour against LGBTIQ+ Youth". Safer Communities. 15: 190–201. doi:10.1108/SC-02-2016-0004. 
  10. ^ a b "Non-Binary Identities & the Law | Transgender Law Center". transgenderlawcenter.org. Retrieved 2015-10-21. 
  11. ^ "State Laws That Prohibit Discrimination Against Transgender People - National Center for Lesbian Rights". www.nclrights.org. Retrieved 2015-10-21. 
  12. ^ "10 Myths About Non-Binary People It's Time to Unlearn". Everyday Feminism. Retrieved 2015-10-21. 
  13. ^ http://www.pbs.org/newshour/updates/ids-nonbinary-people/
  14. ^ http://www.pbs.org/newshour/rundown/intersex-dana-zzyym-passport-decision/
  15. ^ http://www.pbs.org/newshour/rundown/intersex-dana-zzyym-passport-decision/
  16. ^ http://www.lambdalegal.org/know-your-rights/article/trans-identity-document-faq
  17. ^ http://www.zerohedge.com/news/2017-02-01/california-considering-legislation-recognize-new-gender-are-you-female-male-or-nonbi
  18. ^ Dake, Lauren (16 June 2016). "Jamie Shupe becomes first legally non-binary person in the US" – via The Guardian. 
  19. ^ "Californian becomes second US citizen granted 'non-binary' gender status". 
  20. ^ "Legal gender - Nonbinary.org". nonbinary.org. Retrieved 2016-10-10. 
  21. ^ "House of Commons Public Bill Committee : Identity Documents Bill". www.publications.parliament.uk. Retrieved 2016-10-10. 
  22. ^ S.E. Smith (April 8, 2014). "Australian High Court Legally Recognizes Nonbinary Gender Identities -- But The News Isn't All Good". xoJane. 
  23. ^ a b Whitehead, J.; Shaver, John; Stephenson, Rob (2016-01-05). "Outness, Stigma, and Primary Health Care Utilization among Rural LGBT Populations". PLOS ONE. 11 (1): e0146139. doi:10.1371/journal.pone.0146139. ISSN 1932-6203. PMC 4701471Freely accessible. PMID 26731405. 
  24. ^ "Experiences of non-binary people accessing healthcare". UK Trans Info. Retrieved 2015-10-21. 
  25. ^ Ansara, Y. Gavriel (2015-10-01). "Challenging cisgenderism in the ageing and aged care sector: Meeting the needs of older people of trans and/or non-binary experience". Australasian Journal on Ageing. 34: 14–18. doi:10.1111/ajag.12278. ISSN 1741-6612.