Alert April 02, 2012

New Massachusetts Law Will Protect Individuals from Gender Identity Discrimination

Amendment to Chapter 151B

Massachusetts General Law Chapter 151B (“Chapter 151B”) is the principal source of anti-discrimination obligations for Massachusetts employers.  The law prohibits employers from making employment-related decisions based on an individual’s membership in a protected class.  Currently, Chapter 151B defines as protected classes race, color, religious creed, age, national origin, sex, sexual orientation, handicap, genetic information, ancestry and participation in or application to participate in a uniformed military service of the United States.   

After the Act becomes effective on July 1, 2012, Chapter 151B will also prohibit Massachusetts employers, both public and private, from discriminating against any individual on the basis of “gender identity.”  Gender identity is defined by the Act 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.”

Definition of “Gender Identity”

The definition of gender identity under the Act is somewhat vague.  It protects all individuals who assume a gender-related identity, not just those individuals who have undergone or are in the process of undergoing sexual reassignment surgery.  An individual can demonstrate gender-related identity by providing evidence of 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.  Medical documentation is not required for protection from gender identity discrimination.  It is unclear how an employer will be able to recognize the protected status of an employee who has a sincerely held gender identity, but who does not consistently or uniformly assert that identity or otherwise self-identify.  Just as slurs or jokes about race, sex and age are inappropriate regardless of whether the audience includes a known member of the directly offended class, the same principles apply to remarks relating to gender identity.  ,/p.

Impact on Employment Policies

Massachusetts employers should review and revise their equal employment opportunity and anti-harassment policies to add a prohibition against gender identity discrimination.  They also should consider renewing their anti-harassment training to include the need to be sensitive to gender identity and expression.  The Act does not address whether an employer may require an employee to use a gender-specific facility used by members of the employee’s biological sex.  Other authorities – including the U.S Office of Personnel Management in its guidance to federal agencies regarding the employment of transgender individuals – have suggested that once an individual has begun living and working full-time in the gender that reflects his or her gender identity, the individual’s employer should allow the individual access to gender-specific facilities consistent with that gender identity.