Last week, following 16 years of discussion and debate, the New York state legislature finally passed the Gender Expression Non-Discrimination Act (GENDA). The act would amend the state New York Human Rights Law to prohibit discrimination on the basis of gender identity or expression in housing, employment and public accommodations. The act defines gender identity or expression as “a person’s actual or perceived identity, appearance, behavior, expression, or other gender-related characteristic regardless of the sex assigned to that person at birth, including, but not limited to, the status of being transgender.” Although the act has amended the New York State Human Rights Law to specifically include gender identity and gender expression as protected classes, the change may be less significant than one would expect. Notably, in October 2015, New York adopted regulations to prohibit harassment and discrimination on the basis of gender identity, transgender status and gender dysphoria. In addition, the Model Sexual Harassment Policy for New York Employers issued by New York in October 2018 prior to the passage of the act states that sexual harassment includes harassment on the basis of gender expression, gender identity and the status of being transgender, and that harassment and discrimination on the basis of gender identity are prohibited. New York state follows several other states; cities, including New York City; and counties that have passed legislation protecting gender identity and gender expression. The act goes further to amend the state penal law to include certain offenses motivated by gender identity and expression in the hate crime statute.
At the city level, the New York City Human Rights Law specifically prohibits discrimination based on gender identity or expression. At the federal level, there are fewer protections for transgender and LGBT individuals. Title VII of the Civil Rights Act does not explicitly include gender identity and expression as a protected characteristic. However, the U.S. Equal Employment Opportunity Commission has adopted the position that gender identity discrimination is covered by Title VII as a type of sex discrimination. There is a bill in the U.S. Congress, referred to as the Equality Act, that, if passed, would amend Title VII to prohibit discrimination on the basis of sexual orientation and gender identity. Just today, the U.S. Supreme Court lifted lower court orders blocking the Trump administration from implementing a policy that would ban transgender service members from the military.
The act is expected to be signed into law by Gov. Andrew Cuomo in the near future, and it will go into effect 30 days after the date that it is signed. However, the hate crime provisions of the act are expected to become effective on Nov. 1, 2019.
New York state employers, especially those outside New York City where gender identity and expression are not already protected categories, should review their nondiscrimination and anti-harassment policies and training to ensure that they specifically include gender identity, gender expression and the status of being transgender as protected categories and make clear that discrimination or harassment on these grounds is unlawful and prohibited.