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Gender Identity To Be Protected Under Massachusetts Law

Valerie Samuels December 9, 2011

On November 23, 2011, Governor Deval Patrick signed into law An Act Relative to Gender Identity, commonly referred to as the Transgender Equal Rights Bill.  The law becomes effective on July 1, 2012.  It amends the Massachusetts Anti-Discrimination Statute, Chapter 151B, to prohibit discrimination based on gender identity in employment, housing, mortgage lending, credit and education.  The law also expands the Commonwealth’s hate crimes statute to protect transgender people.  Moreover, in February, 2011, Governor Patrick signed an Executive Order prohibiting discrimination against transgender people in state employment.  The Executive Order covers approximately 43,500 executive branch employees and 13,500 state contractors.

The new 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 a person’s physiology or assigned sex at birth.”  A transgendered person seeking protection under the law must demonstrate their gender-related identity by their medical history, care or treatment of their gender-related identity; consistent and uniform assertion of their gender-related identity; or any other evidence that the gender-related identity is part of the person’s core identity.

Although prior to the passage of this law, there was no specific protection for gender identity in Chapter 151B, the Massachusetts Commission on Discrimination permitted transgender persons to file complaints under the protected category of gender.  Transgender individuals may now avail themselves of the full panoply of protections under Chapter 151B, including prohibitions from discrimination in hiring, discharge, compensation or other terms and conditions of employment.  The anti-retaliation provisions of Chapter 151B also prohibit retaliation against any individual for protected activity, including filing a complaint, protesting acts of discrimination or participating in an investigation of such allegations.

With the passage of this law Massachusetts joins 15 other states, as well as the District of Columbia, and more than 140 counties and cities (including Boston, Cambridge, Northhampton and Amherst) that have enacted laws protecting transgender people.  Notably, the provision which would have required “sex segregated facilities” (such as restrooms or locker rooms) to grant admission to people based on gender identity was not included in the final version of the bill which was signed into law.  However, Governor Patrick noted that lawmakers would “come back around to public accommodations,” according to the Patriot-Ledger, a newspaper based in Quincy, Massachusetts. 

Employers are advised to make sure that their managers and supervisors understand the new law and know what to do if a situation arises concerning gender identity.  Moreover, companies should add this protected category to the equal employment opportunity provision in their employee handbook and update their job application. 

If you have any questions or need additional information regarding the transgender equal rights law, please contact Valerie C. Samuels or any other attorney in our Employment Group.

This Alert is provided for information purposes only, and does not constitute legal advice.  According to Mass. SJC Rule 3:07, this material may be considered advertising. ©2011 Posternak Blankstein & Lund LLP.  All rights reserved.

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