Massachusetts passes transgender rights bill

Issue January 2012 January 2012 By Dana L. Fleming

On Nov. 16, 2011, the Massachusetts Legislature passed a bill to protect transgender people in Massachusetts from discrimination in employment, housing, mortgage loans and credit.1 The House enacted the bill by a vote of 93-60, and the Senate passed the bill on a voice vote on the last day of the legislative session. Gov. Deval Patrick signed the bill Nov. 23, which would go into effect on July 1, 2012.

The bill, entitled, An Act Relative to Gender Identity, amends the commonwealth's non-discrimination laws to include "gender identity" as a new protected category. 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."2

Pursuant to the language of the bill, 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."3 The list of potential evidence of a person's gender identity is not meant to be exhaustive, and the bill expressly accounts for the possibility that there may be other sources of information sufficient to establish an employee's gender identity.4

Proponents of the bill spent six years lobbying Beacon Hill for its passage and consider it a major victory for the lesbian, gay, bisexual and transgender (LGBT) community, which is said to include more than 33,000 transgender individuals across the state.

However, the legislation is not a total victory for transgender rights advocates because it fails to protect transgender people in public accommodations, such as hotels, restaurants and clubs. Proposals to include public accommodations language in the bill were rejected after opponents dubbed it "the bathroom bill." If public accommodations were included in the bill, critics argued, it would allow biological males to gain access to women's restrooms, locker rooms and other changing areas -- an outcome some in the Legislature found unacceptable.

In what may have been a nod to opponents of the public accommodations proposal, the bill provides the following caveat: while transgender people may not be discriminated against on the basis of their gender identity, at the same time, they may not assert their gender identity "for any improper purpose."5 Although the bill does not specify what such an "improper purpose" might be, this provision may allude to the contentious bathroom issue.

The bathroom question has already been addressed by some courts. In the landmark case of Cruzan v. Special Sch. Dist., #1,6 the U.S. Circuit Court of Appeals for the 8th Circuit ruled in favor of allowing transgender employees to use the bathroom that best matches their new presentation.

In Cruzan, David Nielsen had been teaching in the Minneapolis public schools for 30 years when he informed administrators that he was transgender and wanted to transition his biological sex from male to female.7 The school worked with Nielsen during the transition, meeting with parent groups, psychologists and legal counsel to prepare for the change.8 Upon Nielsen's new presentation as a woman named Debra Davis, the school allowed Davis to use the women's faculty restroom.9

The Cruzan case was brought by another female teacher, named Carla Cruzan, who claimed she was uncomfortable sharing a restroom with Davis.10 Cruzan filed claims for religious discrimination, sex discrimination and hostile work environment on the grounds that the school had improperly allowed Davis to use the women's faculty restroom.11

The 8th Circuit upheld the decision of the U.S. District Court of Minnesota, finding that the school had acted reasonably in accommodating Davis with access to the women's faculty restroom and noting that Cruzan was provided with several reasonable alternatives, including use of the student female restroom near her classroom and several single-stall unisex bathrooms located throughout the building.12 On those facts, the court found that the school's decision to allow a transgender employee use of the women's faculty restroom did not rise to the level of an actionable adverse employment action against the plaintiff.13

Of course, not every workplace can accommodate employees with different types of bathrooms or single-stall, unisex options. Whichever type of bathroom may be available in the workplace, Occupational Safety and Health Administration (OSHA) regulations require that employees have unrestricted access to a convenient restroom (generally less than a one-quarter mile walk from their assigned work station).14

While a growing number of states now protect transgender people against discrimination in employment and/or public accommodations, there is still no federal law that recognizes gender identity as a protected category. However, in recent years, the 1st, 6th and 9th Circuit Courts of Appeal have each held that transgender people are protected by existing federal sex discrimination laws.15

The ways in which states define gender identity and the scope of protection offered to people who fall within those definitions vary from state to state and statute by statute. Massachusetts now joins 13 other states that provide some level of protection for transgender employees: California, Colorado, Connecticut, Illinois, Iowa, Maine, Minnesota, New Jersey, New Mexico, Oregon, Rhode Island, Vermont and Washington. Many local municipalities have also passed ordinances relative to gender identity. As always, it is important for employers confronted with employment issues to check their local laws for applicable guidance.

Dana L. Fleming is an associate in the Boston office of Seyfarth Shaw. She has significant experience in defending employers against all types of discrimination, harassment and complex wage and hour claims, and in providing employer counseling and advice on a variety of topics, including FMLA and reductions in force.

1The bill also extends protection to transgender people under existing hate crimes laws. H.B. 3810, 187 Gen. Ct. (Mass. 2011).
6294 F.3d 981 (8th Cir. 2002).
7Id.  at 983.
12Id.  at 983, 984.
13On appeal, Cruzan argued - quite creatively - that the lower court had abused its power by allowing a male judge to decide that reasonable women would not find sharing bathroom facilities with a co-worker who self-identifies as female, but who may be biologically male, sufficient to create a hostile or abusive work environment. The 8th Circuit found her argument unpersuasive, noting that judges routinely decide hostile environment and sexual harassment cases involving plaintiffs of the opposite sex. Cruzan v. Special Sch. Dist., #1, 294 F.3d 981, 984 (8th Cir. 2002).
14See 29 C.F.R § 1910.141(c)(1)(i) (2011); Memorandum from John B. Miles, Jr., Dir., Directorate of Compliance Program, Occupational Safety & Health Admin. to Reg'l Adm'rs (Apr. 6, 1998) (interpreting 29 C.F.R. 1910.141(c)(1)(i)).
15See, e.g., Rosa v. Park W. Bank & Trust Co., 214 F.3d 213, 216 (1st Cir. 2000) (reinstating Equal Credit Opportunity Act claim on behalf of transgender plaintiff who alleged that he was denied opportunity to apply for loan because he was not dressed in "masculine attire"); Schwenk v. Hartford, 204 F.3d 1187, 1202 (9th Cir. 2000) (holding that transsexual prisoner could state claim under Gender Motivated Violence Act because sex discrimination includes "[d]iscrimination because one fails to act in the way expected of a man or woman"); Smith v. City of Salem, 378 F.3d 566, 575, 578 (6th Cir. 2004) (holding transsexual city fire department employee stated valid sex discrimination claim under either Title VII or Equal Protection Clause of 14th Amendment).