Discrimination against non-binary gender people
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Discrimination or prejudice against non-binary people, people who do not identify as exclusively masculine or feminine, is a form of sexism, as well as a specific type of transphobia. Both cisgender and binary transgender people (men and women), including members of lesbian, gay, bisexual, and transgender (LGBT) communities, can display such prejudice.
In the binary gender system, genderqueerness is unintelligible and abjected. 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%).:22 In another study conducted by the National LGBTQ Task Force, 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.
Social discrimination in the context of discrimination against non-binary and gender non-conforming people includes hate-motivated violence and excusing of such. 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 distress the participants. Further than this, there is a potential that people would not have elected to participate for fear of being distressed. 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.
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, 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.
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.:11
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". 43% were likely to have attempted suicide compared to the U.S. rate of 1.6%. 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.” 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.
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.
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.
Despite being more likely to achieve higher levels of education when compared to the general public,: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. 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.
Twelve states currently have legislation which bars discrimination based on gender identity. 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.
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 and an intersex and 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 US citizens to receive a court decreed gender of non-binary were in Oregon and California. 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. 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. 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.
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 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. 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.
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.
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