Montgomery County has added gender identity to the list of prohibited bases of discrimination. The law, which takes effect February 20, 2008, makes it unlawful to discriminate against transgender individuals in Montgomery County, Maryland, in employment and other economic relationships and services.

The Law

Bill 23-07, which supporters argued is needed to combat the discrimination suffered by transgender individuals, was passed by a unanimous Montgomery County Council on November 13, 2007, and signed into law by County Executive Isiah Leggett on November 21. The ordinance will prohibit gender identity discrimination in the areas of employment, housing, public accommodations, cable television service, and taxicab service. It defines gender identity as “an individual’s actual or perceived gender, including a person’s gender-related appearance, expression, image, identity, or behavior, whether or not those gender-related characteristics differ from the characteristics customarily associated with the person’s assigned sex at birth.”

The ordinance includes a provision which requires employers to allow transgender people to appear, dress, and groom in accordance with their gender identity. However, employers are permitted to enforce reasonable and non-discriminatory workplace standards regarding appearance, grooming, and dress.

Opponents of Bill 23-07 fear that its language regarding public accommodations will be used to allow indecent exposure or voyeurism in restrooms and locker rooms. However, the bill excepts from its coverage accommodations which are distinctly private or personal. The Health and Human Services Committee and the County Attorney’s Office reported to the Council that they considered this to mean that an operator of a bathroom or locker room may continue to designate who is eligible to use such facilities, whether such a designation is made by gender identity or by birth sex.

State and Local Efforts

This bill is only one of many legislative efforts in the United States to make unlawful discrimination against transgender individuals. The National Gay and Lesbian Task Force reports that California, Colorado, the District of Columbia, Hawaii, Illinois, Iowa, Maine, Minnesota, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, and Washington, as well as ninety-one local jurisdictions, have enacted explicitly transgender-inclusive non-discrimination laws. According to the Task Force, this means that 37% of the U.S. population is covered by such a law. Some other jurisdictions are governed by court or administrative rulings which have extended sex or disability discrimination laws to cover discrimination on account of transgenderism.

Federal Consideration

On November 7, the United States House of Representatives passed the Employment Non- Discrimination Act (“ENDA”). If ENDA were to become law, it would prohibit employers with fifteen or more employees, excluding the armed forces, private clubs, and religious organizations, from discriminating on the basis of sexual orientation.

The bill, which was sponsored in chief by Representative Barney Frank, at one point included a provision giving transgender and gender identity protection to workers. However, that provision was removed in order to maintain support for ENDA in the House.

Even without gender identity protection, the likelihood of ENDA being enacted is thought to be slim. If the bill were to survive a Senate vote, it seems clear the support needed to override the likely veto by President Bush would be lacking.

Conclusion

For now, employers chiefly are governed by state and local law in their practices relating to gender identity. While employers have no experience yet with the new Montgomery County law, some guidance can be drawn from the enforcement of similar provisions in other jurisdictions. It is important that Montgomery County employers prepare for this new workplace regulation.