New Transgender Anti-Discrimination Law – What You Need to Know

On July 6, 2016, Governor Charles D. Baker signed into law Senate Bill 2407: An Act relative to transgender anti-discrimination, codified at G.L. c. 272 §§ 92, 92A, and 98. Effective October 1, 2016, this new law formally prohibits discrimination on the basis of gender identity in places of public accommodation. Gender identity is now considered a specifically protected class; regardless of gender identity, all persons shall have the right to full and equal accommodations, advantages, facilities, and privileges in any place of public accommodation. For the purpose of this statute, gender identity is defined 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.” One’s gender identity must be “sincerely held as part of a person’s core identity,” as the law does not permit the fraudulent assertion of gender identity for the purposes of gaining entry into a facility.

In 2012, G.L. c. 151B was amended to prohibit discrimination on the basis of gender identity in employment, housing, lending, credit and mortgage services. These recent revisions now broaden the scope of gender identity protection to include places of public accommodation. Places of public accommodation are those that are open to and accept or solicit the patronage of the general public. Such places include retail stores, restaurants, theaters, fitness and health centers, public agencies, and public parks. Businesses providing services to the public are also includable by statute, such as loan companies, cab services, and insurance companies.

The Massachusetts Commission Against Discrimination (MCAD) released a comprehensive guide to the new laws in order for places of public accommodation to more easily interpret and apply the anti-discrimination laws. The gender identity guidance manual outlines the various forms of unlawful discrimination for which the law would take effect. These include:

  • Refusing or denying service;
  • Offering a different or inferior class or qualify of service or a more limited set of products, goods, services, or facilities than are available to others;
  • Advertising or publicizing that it does not accept business from transgender or gender non-conforming individuals;
  • Providing false information about the availability of products, goods, services, facilities, or admission; and
  • Harassment and intimidation.

In addition to prohibiting discrimination, the new law also provides transgender people with the affirmative right to use whichever sex-segregated facility is most consistent with their gender identity. Places of public accommodation may still maintain sex-segregated facilities (such as restrooms, changing rooms, and locker rooms), but patrons must be permitted to use whichever facility is most consistent with their self-identified gender without interference. Provided an individual is not engaged in any improper or unlawful conduct, the individual is presumed to be using the facility most consistent with their gender identity. Accordingly, facilities must not assume that an individual is using the wrong facility based on appearance alone (i.e. a “masculine” appearance alone does not provide grounds to question an individual’s presence in a women’s facility).

A legitimate concern as to an individual’s choice of facility only arises when, due to the individual’s behavior, the place of public accommodation is “reasonably worried about potentially improper or unlawful conduct.” In these circumstances, a limited inquiry is appropriate; if the individual confirms that they are using the appropriate facility, the inquiry ends there. An exception exists where there are reasonable grounds to believe that an individual is engaging in improper or unlawful conduct. Examples of improper or unlawful conduct include loitering for the purpose of observing other patrons; harassing employees or other patrons; making threats or engaging in violent conduct; photographing other patrons; and committing a violation of law. In these scenarios, the business should address the situation by whatever means the business typically addresses misconduct.

In most places of public accommodation, it is unlawful to request proof of gender identity for the use of sex-segregated facilities. There are very limited circumstances, however, where a request for documentation is permissible. If a place of public accommodation regularly requires documentation of gender for all of its members (at a health club, for example), an individual’s gender identity may be demonstrated by presentation of one of the following:

  • Government-issued identification;
  • Letter from doctor, therapist, or healthcare provider;
  • Letter from a friend, clergy, or family member regarding the person’s routine conduct, such as dress, grooming, and use of corresponding pronouns;
  • Any other evidence that the gender identity is sincerely held as part of the person’s core identity.

If you have any questions or need any assistance with any issues arising from this new legislation, please contact one of Conn Kavanaugh’s employment lawyers.

DANIEL R. FISHMAN

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