HR Compliance

New York City Recognizes Third Gender Option on Birth Certificates

By

Kristin Birchell

| Jan 23, 2019

In October 2018, New York City mayor Bill de Blasio signed Introduction 954-A into law. It went into effect on Jan. 1, 2019, and will amend the administrative code of the city of New York to include a third sex designation on birth certificates. Individuals in New York City now have the option of choosing “X” as the gender, which is used to indicate a sex that is not exclusively male or female.

The law also will make it easier for individuals to request a correction to their sex designation on birth certificates by removing the requirement to provide supporting documentation from a medical professional.  Under the revised law, applicants need only provide a signed and notarized statement, from the applicant themselves, requesting their sex designation be changed to conform to their gender identity.

Effect on employers and best practices

Although employees may identify as non-binary, that option does not currently exist on the EEO-1 Report. Employers subject to EEO reporting still are required to report all workers as either male or female. If an employee declines to self-identify as male or female, a company is still required to report that worker’s gender. Under current agency guidance, employers will be allowed to conduct visual observation of an employee and record their best estimate of the person’s biological sex, based on a good-faith observation.

However, employers should remain cognizant of an employee or applicant’s choice to identify as non-binary. As a general best practice, employers should include gender identity and gender expression in non-discrimination policies. Employers should take steps to combat any bias or harassment that may arise, including reviewing and addressing company policies, handbooks and work forms that may promote bias, non-acceptance or misuse of pronouns.

Other states

The New York City law mirrors the efforts of a handful of states. Currently three states allow for a non-binary sex designation on birth certificates: California, Oregon and Washington. Additionally, New Jersey will include a non-binary designation on birth certificates beginning Feb. 1. These state laws remove barriers for individuals wishing to change their designation, including amending previous laws requiring applicants to provide medical certifications or court orders.

This blog includes general information about legal issues and developments in the law. Such materials are for informational purposes only and may not reflect the most current legal developments. These informational materials are not intended, and must not be taken, as legal advice on any particular set of facts or circumstances. You need to contact a lawyer licensed in your jurisdiction for advice on specific legal problems.

About the Author

Kristin Birchell

As a compliance attorney for Paycom, Kristin Birchell monitors legal and regulatory changes at the state and federal level, with a focus on labor and employment laws, to ensure the Paycom system is updated accordingly. Previously, she served as an attorney at the Oklahoma City law firm Derryberry & Naifeh LLP. Birchell earned a bachelor’s degree and MBA from the University of Central Missouri, and her Juris Doctor from the Oklahoma City University School of Law. Outside of work, she enjoys cooking, hiking, going to the movies and spending time with her husband.

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