Complying with the Massachusetts Transgender Equal Rights Law

Employment Law Advisor, January 20, 2012

On November 16, 2011, the Massachusetts Legislature passed a bill to protect transgender people from discrimination in employment, housing, mortgage loans and credit. Governor Patrick signed the bill into law on November 23, 2011, and the law will go into effect on July 1, 2012.

Entitled "An Act Relative to Gender Identity," and also referred to as the “Transgender Equal Rights Law,” the law amends the state non-discrimination laws to include "gender identity" as a new protected category. The law covers employers with six or more employees. As with other protected categories, like age, race, gender, religion, disability and sexual orientation, the law prohibits covered employers from discharging, refusing to hire, or otherwise discriminating against transgender individuals with respect to their terms or conditions of employment.

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." To qualify for protection, transgender individuals may demonstrate their gender-related identity with evidence that includes their medical history, care or treatment of their gender-related identity, a consistent assertion of their gender-related identity, or any other evidence that gender-related identity is sincerely held, a part of their core identity.

What should employers do to comply with the new law?

As stated above, the law becomes effective on July 1, 2012. To comply, covered employers should modify their equal employment opportunity and anti-discrimination policies to include prohibitions against gender identity discrimination. Massachusetts requires that employers maintain and distribute sexual harassment policies. For employers who have anti-harassment policies addressing all forms of unlawful harassment (which we recommend), such policies should be modified to include gender identity harassment.

Employers should also consider whether the new law will require any changes in the provision and usage of restrooms, locker rooms and other gender-specific facilities. The law does not make clear whether an employer can restrict an employee to use only the restroom assigned to members of his or her biological sex. For employers with transgender employees, restroom access during sexual identity transitioning can create difficult employee relations issues. It is best to obtain legal advice before implementing policies or making situation-specific decisions that will affect employee rights.

Please contact any member of MBBP's Employment Law Group for more information.

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