Google-Owned YouTube Can Exclude Non-Binary Viewers From Advertising

Employers and landlords have been able to hide advertisements from non-binary people on Google's advertising system, according to The Markup.

According to the report, companies running ads on YouTube, which Google owns, could elect to have ads shown only to users who identify as either "male" or "female," excluding people of "unknown gender."

Elijah Lawal, a Google spokesperson, said, "we will be implementing an update to our policy and enforcement in the coming weeks to restrict advertisers from targeting or excluding users based on the 'gender unknown' category."

Complying with federal anti-discrimination laws, the company's policy prohibits specifically targeting or excluding those who identify either as male or female from ads pertaining to jobs, housing, and financial products. The Markup alleges that Google has allowed advertisers to exclude non-binary people – whether inadvertently or intentionally – from seeing ads for employment and housing.

The Markup cites two job ads, one by FedEx and the other by the California-based Dewey Pest Control, which specifically targeted – though data does not indicate which gender either company chose. In both cases, the companies were allowed to exclude people of "unknown gender," which was confirmed by Lawal. Neither FedEx or Dewey Pest Control have commented on the matter.

It's unclear whether advertisers are intentionally excluding non-binary people and, consequently, preventing non-binary and transgender people from finding advertisements for jobs and/or housing.

Acknowledging that the "unknown gender" option allows advertisers to discriminate, Lawal said Google's current policies prohibit the exclusion of transgender and non-binary people from advertisements. "This is why we are working swiftly to implement a change," Lawal said, adding the "unknown gender" category "is not intended to allow for targeting or exclusion of users based on gender identity."

Existing federal law prohibits discrimination based on race and gender in ads for employment and housing. Still, there are questions about how this pertains to online advertising – namely, because case law hasn't yet addressed the issue.

Pauline Kim, a law professor at Washington University in St. Louis, pointed out that according to a recent Supreme Court ruling, if a company intended to exclude non-binary or transgender people, "you could possibly argue ... that it is a form of sex discrimination" under Title VII of the Civil Rights Act of 1964. The SCOTUS ruling covers discrimination based on sexual orientation and gender identity.

Kendra Albert, a technology law instructor at Harvard, said that what makes online advertising scenarios like this problematic is "you don't even know what you don't see."

Google allows users to see how they are categorized for ads on an account preferences page. But Albert likens this to "a rainbow-colored Band-Aid," adding that these systems "were not really designed to include non-binary people.

"Really the question they should be asking is which gender are you, which of these gender categories would you like us to serve you ads for," Albert adds, and with an explanation for how these systems use gender in advertising.