On Nov. 23, 2011, Massachusetts Gov. Deval Patrick signed into law House Bill 3810 protecting transgender people against discrimination. The law, which becomes effective on July 1, 2012, extends the state’s nondiscrimination laws to prohibit discrimination based on gender identity in employment, education, housing and credit,1 and adds gender identity to its hate crime laws.
The law defines “gender identity” as “a person’s gender-related identity, appearance or behavior, whether or not that gender-related identity, appearance or behavior is different from that traditionally associated with the person’s physiology or assigned sex at birth,” and states that “[g]ender-related identity may be shown by providing evidence including, but not limited to, medical history, care or treatment of the gender-related identity, consistent and uniform assertion of the gender-related identity or any other evidence that the gender-related identity is sincerely held, as part of that person’s core identity; provided however, gender-related identity shall not be asserted for any improper purpose.”
Absent a bona fide occupational qualification, the new law prohibits Massachusetts employers (not including religious organizations and entities) from making decisions about the terms and conditions of a person’s employment, including, but not limited to, hiring, termination and compensation, based on a person’s gender identity. Bona fide occupational qualifications are likely to be defined narrowly, as they are under the law’s prohibitions of sex and age discrimination.
Massachusetts joins the District of Columbia, 15 other states (California, Colorado, Connecticut, Hawaii, Illinois, Iowa, Maine, Minnesota, Nevada, New Jersey, New Mexico, Oregon, Rhode Island, Vermont and Washington), and over more than 100 cities and counties nationwide, in prohibiting discrimination against transgender people. State courts in several jurisdictions have held that in some instances, state statutory prohibitions on sex and disability discrimination protect transgender people. Some federal courts, including the First, Sixth and Ninth Circuits, have also held that federal statutes prohibiting sex discrimination sometimes protect individuals who are transgender or otherwise gender nonconforming.
In addition to training HR professionals, managers, supervisors and line employees on how to avoid discrimination based on gender identity, employers should update their employee handbooks and related nondiscrimination and anti-harassment policies to include “gender identity or expression” as a protected characteristic. These are necessary steps for employers with employees in Massachusetts and the other states and localities with transgender nondiscrimination statutes. And because an increasing number of states and courts are extending protections to transgender employees, employers operating in other jurisdictions would also be wise to amend their policies and conduct training in the same manner.
Workplace issues involving transgender employees may be new to many employers. Employers with questions about compliance with transgender nondiscrimination laws should consult with counsel for guidance.
For more information on this alert, please contact any of the lawyers listed below:
John Adkins, firstname.lastname@example.org, 617.951.8551
Jenny Cooper, email@example.com, 617.951.8473
Louis Rodriques, Co-chair, Labor and Employment Group, firstname.lastname@example.org, 617.951.8340
This article was originally published by Bingham McCutchen LLP.