Legal Updates

Massachusetts Enacts “Gender Identity” Law

On November 23, 2011, Massachusetts Governor Deval Patrick signed “An Act Relative To Gender Identity,” which adds gender identity as a protected characteristic to various state anti-discrimination laws.  Effective July 1, 2012, Massachusetts law will prohibit discrimination based on gender identity in employment, education, housing, credit, and other areas.  The act, however, is silent as to whether gender identity should be recognized as a protected characteristic in the provision of public accommodations, such as hotel and restaurant services.

The act defines gender identity as “a person’s gender-related identity, appearance or behavior, whether or not . . . different from that traditionally associated with the person’s physiology or assigned sex at birth.”  Under the act, evidence of a person’s gender identity may include “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 person’s gender-related identity is sincerely held, as part of the person’s core identity.”

The act also states that “gender-related identity shall not be asserted for any improper purpose,” but does not explain this statement or provide examples to illuminate its meaning.

In passing the act, Massachusetts joins the District of Columbia and the following 14 states in rendering gender identity a protected characteristic:  California, Colorado, Connecticut, Hawaii, Illinois, Iowa, Maine, Minnesota, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, and Washington.

In order to comply with the act by its July 1 effective date, employers are encouraged to take the following measures:

  • Revise equal employment opportunity policies, harassment policies, and corresponding managers’ guides and employee handbooks to include gender identity as a protected characteristic;
  • Roll out the new policies sufficiently in advance of July 1 to provide employees with adequate notice of this change, and consider doing so in conjunction with general training on diversity, sensitivity, and appreciation of differences;
  • Train managers and supervisors to appropriately handle issues pertaining to gender identity in all aspects of human resources, including interviewing, hiring, evaluating performance, imposing discipline, and terminating the employment relationship; and
  • Ensure that all individuals designated in your organization’s discrimination and harassment policies understand how to respond appropriately to complaints of discrimination based on this new protected characteristic.

This new law will almost certainly result in a wave of cutting-edge employment litigation based on the assertion of gender identity in the workplace.  Accordingly, employers that act now to understand and thoughtfully implement this new law over the next several months should have the greatest protection against liability when the law takes effect on July 1.

The new Massachusetts law is also a reminder to employers to exercise care when an employee undergoes a change in gender identity.  Such circumstances can be challenging for not only the employee, but also co-workers and managers.  Thus, special training and thoughtful advice from experienced counsel are critically important when a current employee is going through a change in gender identity.  We have substantial experience guiding clients successfully through that process and are happy to assist as appropriate.

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Please do not hesitate to contact us if you have questions about this new law or would like our assistance in achieving compliance with it.