On June 8, 2018, New Hampshire Governor Chris Sununu signed, “An Act Prohibiting Discrimination Based on Gender Identity,” which adds gender identity as a protected characteristic to state anti-discrimination laws. The new law will take effect 30 days after it was passed (i.e., July 8, 2018), and will prohibit discrimination based on gender identity in employment, in places of public accommodation, and in housing. New Hampshire was the last New England state to adopt this protection and joins over a dozen states outside of New England (e.g., California, Colorado, Delaware, District of Columbia, Hawaii, Illinois, Iowa, Maryland, Minnesota, Nevada, New Jersey, New Mexico, Oregon, Utah, Washington) in providing protection for gender identity in employment and other areas.
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 the person’s physiology or assigned sex at birth.” Under the law, gender-related identity may be shown by providing evidence including, but not limited to, “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 a person’s core identity.” In an apparent attempt to ensure that this law is not misused (e.g., with respect to bathrooms), the law also provides that “gender-related identity shall not be asserted for any improper purpose.”
We recommend that all employers with six or more employees in New Hampshire review and revise, if necessary, their equal employment opportunity policy and harassment policy to add gender identity in the list of protected characteristics. In addition, we recommend reviewing job applications and recruiting materials to ensure that gender identity is included as a protected characteristic. Finally, we recommend training managers and supervisors to appropriately handle issues pertaining to gender identity, such as requests for use of a different pronoun or use of a restroom that is consistent with gender identity rather than anatomical sex. Employers should ensure that all supervisors and managers understand how to respond appropriately to complaints of discrimination or harassment based on this new protected characteristic.