Employers can use writing and analytical skills they already possess to support nonbinary employees through more robust workplace policies. One of the most important principles to ultimately create a welcoming environment is to be proactive. Avoid a “wait and see” approach that will inevitably result in issues in the future. As discussed below, employers should proactively adopt or modify HR policies and promote DEI programming.
A. Revise HR policies early and often.
Typically, HR policies are gendered and assume all employees fit into the binary categories women and men. They require revision to include nonbinary and gender nonconforming people.
Even employers who have robust policies to support transgender men and women must expand their policies to meet the needs of nonbinary people. Nonbinary people have experiences that are distinguishable from binary transgender people. In some cases, policy solutions designed to fit the needs of binary transgender women and men can still negatively impact people who do not fit into a binary identity. Therefore, policies must be reviewed proactively to ensure nonbinary employees do not become test subjects when outdated HR policies are silent and fail to contemplate nonbinary employees’ experiences.
Preliminarily, consider using hypothetical scenarios to carefully review policies and determine how they would apply to a nonbinary employee. This provides employers with an opportunity to revise policies negatively impacting a nonbinary employee before a real-life conflict occurs.
For example, policies that restrict name and gender usage to legal names and government-recorded gender markers can wrongfully and unnecessarily disclose an individual’s a former name or transgender or nonbinary identity. Inadvertent disclosure of this information can even lead to employer liability in some states such as California. Employers should prepare ahead of time to avoid unnecessary exposure of sensitive personal information.
Employers should prioritize the following:
Gender inclusive facilities, including gender neutral restrooms, gyms, etc., so all employees can use the facilities with which they feel most comfortable;
Gender inclusive housing policies for travel associated with work;
Gender inclusive healthcare insurance plans that provide comprehensive medically necessary gender affirming care for nonbinary and transgender employees and plan beneficiaries;
Gender inclusive coming out policies that account for individual variation and do not assume an employee is a binary transgender man or woman
Gender inclusive name policies that permit employees to change the name they use at work (legally or otherwise). Some employees cannot or do not want to change to their legal name, but that should not prohibit employees from altering their’ names on the firm, government entity, or organization’s website, business cards, or email directories. Legal names should only be required when legally mandated, such as on an employee's payroll and tax forms; and
Gender inclusive dress codes, which should not restrict an employee’s chosen attire to stereotypical characteristics historically assigned to the gender binary.
Employers also should be clear about their expectations for employees. Expectations should not relate to gender. To the extent dress codes are necessary, policies should not impose different standards on people depending on their gender or perceived gender. Policies should not require employees to choose between wearing clothing exclusively viewed by others as "men's" or "women's" attire.
Instead, dress codes should be gender neutral and enable employees to present however they feel most comfortable. An appropriate policy would allow employees to express any gender presentation, which may include a mixture of clothing from the "men's" and "women's" sections of clothing stores. Gender inclusive dress codes can maintain standards of workplace professionalism without harmfully categorizing someone as unprofessional simply for presenting outside the gender binary or forwarding stereotypical perceptions of the non-masculine as inferior to the masculine. Finally, employers should defend employees who are targeted due to their gender presentation.
B. Maximize meaningful engagement in relevant DEI programming.
Creating nonbinary inclusive polices does not necessarily mean creating a completely new set of programs around nonbinary inclusion. Instead, employers can build nonbinary inclusive policies into existing DEI materials and other internal programming. Including nonbinary people in existing DEI programs signals to employees of all genders that nonbinary people belong in the workplace.
For example, employers should connect nonbinary-focused DEI content with existing conversations about firm culture and the wellbeing of attorneys. Additionally, firms, government entities, and organizations should express their interest in attracting and retaining the talent of nonbinary attorneys just as they do for any group of skillful attorneys who add value.
Nonbinary inclusive DEI trainings and educational materials should address biases and stereotypes about how gender operates interpersonally in the world and in the legal profession. Discussions should address misassumptions that every person is either a woman or a man and how stereotypes may extend to formalities, such as honorifics, that lawyers take for granted in everyday practices. Employers should also encourage their workforces to familiarize themselves with using they/them pronouns and other gender inclusive grammar practices. This is important for everyone at a given workplace because each coworker contributes to workplace culture, even though mid-level supervisors and upper management set the tone.
DEI programming for employees should involve more than infrequent, mandatory trainings. Research suggests DEI initiatives are more successful when they are both frequent and voluntary.16 Rather than planning all DEI programming from the top down, law firms can allow attorneys to organize informal learning groups such as book clubs, talk spaces, and intramural sports themselves. By giving attorneys the latitude to make these decisions, the programming offered will be more responsive to what attorneys need by design. Participants in each program will be more enthusiastic about the initiatives when they are voluntary and collaborative. This type of programming can fulfill one of the central goals of DEI policy: allowing coworkers to feel more connected and to understand each other better.
But an employer should not require or pressure nonbinary employees to explain their experiences and teach others in the workplace. Like other underrepresented groups, nonbinary people can feel expected to educate others in their workplaces about their experiences. That is additional, unpaid labor that further detracts from their substantive work. Instead, employers should hire a DEI professional who has experience training others about this content.
Finally, when nonbinary employees and employees of other underrepresented communities help with creating DEI programming, employers should value their contributions by counting those hours toward the employee's productivity goals or otherwise rewarding them meaningfully. Employers should also allow employees to voluntarily participate in shaping policies and trainings that concern them or people in similar circumstances.