Feds Propose Removing ‘He’ and ‘She’ from Regulation to ‘Avoid the Gender Binary’

Labor Department adds ‘transgender status, gender identity’ to workplace discrimination list

January 27, 2016

The Department of Labor is seeking to remove the terms "he" and "she" from a regulation prohibiting discrimination in the workforce in an effort to "avoid the gender binary."

The agency is also adding "sex stereotyping, transgender status, and gender identity" to the list of types of employment discrimination banned under the Workforce Innovation and Opportunity Act. If adopted, the regulation would cost job training centers millions of dollars to change their equal employment opportunity posters to include "gender identity."

The agency issued a proposed rule Tuesday that updates the nondiscrimination provisions of the Workforce Innovation and Opportunity Act signed by President Obama in 2014, which provides funding for job training.

The law forbids groups that receive program funding to discriminate on the basis of "race, color, religion, sex, national origin, age, disability, political affiliation or belief, and, for beneficiaries only, citizenship status." The new rule, which will be open to public comment for 60 days, updates the list to include gender identity.

"Our nation’s workforce system should reflect our commitment to diversity and the idea that America works best when we field a full team," Labor Secretary Thomas E. Perez said when announcing the changes. "Protecting workers from discrimination based on disability, pregnancy, language proficiency, gender identity, and other factors is the right thing to do. This proposed rule provides welcome clarity on how to achieve that in the workforce system."

The agency is also proposing to remove male and female pronouns from the regulation to avoid gender norms.

"This [Notice of Proposed Rulemaking] also replaces ‘he or she’ with ‘the individual,’ ‘person,’ or other appropriate identifier wherever possible to avoid the gender binary," the proposed rule stated. "The plain language of the regulations is retained for ease of comprehension and application."

The rule would also require training centers that receive federal funding to add gender identity to the posters they must display.

"The [Notice of Proposed Rulemaking] proposes changes to the specific language provided by the Department for recipients to use in the equal opportunity notice and poster that they are required to post prominently in physical locations and on the recipient’s website," the agency said. "The changes state that ‘sex discrimination includes pregnancy, childbirth and related medical conditions, transgender status, and gender identity; and that national origin discrimination may include limited English proficiency.’"

"These changes, although slight, identify the scope of the nondiscrimination obligation with more specificity and inform those who may not otherwise be aware of the developments in law," the agency said.

Organizations must display posters in English and other versions in up to 10 different languages.

The agency estimated it would cost approximately $4 million to update and disseminate the new equal opportunity posters, which it called an "important benefit to society."

The changes are necessary because the "principles of nondiscrimination and equal opportunity law under these statutes have evolved significantly" since the first version of the law was passed in 1998, according to the notice.

The rule also listed what is now considered examples of "sex-based discrimination," which includes denying an employee access to the "bathrooms used by the gender with which they identify."

The government made a point to note that discrimination against a transgender individual can occur regardless of whether they have "undergone, is undergoing, or plans to undergo sex-reassignment surgery."

Published under: Government Spending