Social Security Now Allows You to Self-Select Gender

Beth Dean 10.27.22
SSN and gender - Nextep compliance update

How to handle the SSN in the workplace

The Social Security Administration has announced that an individual may now self-select their gender on their social security number (SSN) record.

Previously, the sex marker would have to match medical records and other legal documentation. Now, a person can select the male or female sex designation of their choice for the SSN, even if it does not match medical records or other documents.

As part of the Administration’s Equity Action Plan, this move “includes a commitment to decrease administrative burdens and ensure people who identify as gender diverse or transgender have options in the Social Security Number card application process,” said Acting Commissioner Kijakazi.

This change does not currently include options for nonbinary people. However, they are looking into possible future system updates that may include an optional sex designation of “X.”

Although the SSN card does not include a sex marker, people who self-select a different sex for the SSN will still need to apply for a replacement card, according to the Administration. The individual must present documentation verifying their identity, but the Administration will not use the documentation to determine sex designation.

The Department of State announced plans to extend gender self-selection across other documents and identification procedures. Currently, individuals may also self-select their sex marker on passports, including male, female, or X. 

What does this SSN change mean for employers?

The big question is what this means for employers, particularly in recordkeeping and the I-9 document verification process.

In keeping with the government agencies, we recommend allowing employees to self-select their sex marker when processing new hire forms. 

I-9

Your employee’s gender identity may not match across all documents. For I-9 verification purposes, for example, it will be acceptable if the sex markers on the passport and birth certificates don’t match. 

Technically, though, this shouldn’t pose an issue since the document verification process for section two of the I-9 only requires one document from list A or one each from lists B and C. Therefore, if your employee presents a passport for identification, that lone document must suffice to establish both identity and employment authorization, as well as the sex marker. No additional documentation would be needed.

E-Verify

An additional consideration is the E-verify process. Nextep administers this service for our clients by uploading new hire SSNs to the E-Verify portal. This process verifies authorization to work in the US. 

With the Social Security Administration rule change, it will no longer matter if an employee’s sex marker returned from E-Verify does not match other documentation. The criteria we do consider is if the name matches what the Social Security Administration has on file.

Benefits

Health and supplemental benefits may be another matter. We are working with our insurance carriers to determine how to handle sex markers for those purposes and will update you as we learn more. In the meantime, employees may need to use their biological or medical sex designation for health records. 

In this instance, this information should be treated as private health information (PHI) and not used as part of the employment process. As a reminder, an employee has no obligation to share their PHI with an employer. In fact, we recommend the opposite. 

You may have questions about this change enacted by the Social Security Administration. We’re here to help! For one on one advisement of these latest regulations, avoiding sex-based discrimination in the workplace, or creating a more diverse, equitable, and inclusive workplace, please reach out to Nextep’s HR experts.

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