South Africa’s Employment Equity Act (EEA) contains a number of anti-discrimination provisions, as well as mechanisms for employers to collect, analyse, plan and report on employment equity information. The mechanisms however, do not cater for those employees who do not identify with being either male or female. The practice of gathering and reporting only gender binary information for employment equity purposes might therefore be discriminatory. Put differently, where an employer forces an individual who, either biologically or otherwise, does not identify with a particular gender, to choose to be either male or female, this could amount to discrimination.

Chapter II of the Employment Equity Act (EEA) requires designated employers to implement affirmative action measures in respect of designated persons. Besides identifying non-white racial groups as designated groups, the EEA identifies women as part of such group. As a result, the central focus of the information gathering, analysing, planning and reporting processes set out in the EEA is the delineation of the workforce into racial and sex categories. The template forms attached to the EEA envisage that 100% of the employer’s workforce are either male or female.

The two most common gender identities are man and woman, and often people think that these are the only two gender identities. This idea that there are only two genders is called the “gender binary.” If a person has a binary gender identity, that means they identify as either a man or a woman, regardless of the sex they were assigned at birth. But gender is a spectrum and is not limited to just two possibilities. A child may have a non-binary gender identity, meaning they do not identify strictly as a man or a woman – they could identify as both, or neither, or as another gender entirely, in which case they would be Agender. A Cisgender person has a gender identity consistent with the sex they were assigned at birth. For example, a person whose sex was assigned male on their birth certificate and who identifies as a man is Cisgender. A Transgender person has a gender identity that does not match the sex they were assigned at birth. So, a person who was assigned male on their birth certificate and who identifies as a woman is Transgender.

Most societies view sex as a binary concept, with two rigidly fixed options: male or female, both based on a person’s reproductive functions. But a sex binary fails to capture even the biological aspect of gender. While most bodies have one of two forms of genitalia, which are classified as “female” or “male,” there are naturally occurring intersex conditions that demonstrate that gender exists across a continuum of possibilities. This biological spectrum by itself should be enough to dispel the simplistic notion of the “gender binary”- there are not just two sexes.

Further, the relationship between a person’s gender and their body goes beyond one’s reproductive functions. Research in neurology, endocrinology, and cellular biology points to a broader biological basis for an individual’s experience of gender. Research increasingly points to our brains as playing a key role in how we each experience our gender.

Presently, employers have no option in the employment equity environment to cater for employees who do not conform to the "norm". However, it is only a matter of time before there is some sort of challenge to the EEA and regulations. Until such time as the EEA keeps up with the times, the oxymoron will exist that the very legislation that seeks to eliminate unfair discrimination, potentially discriminates against Transgender individuals.