On November 23, 2011, Massachusetts Governor Deval Patrick signed into law a bill prohibiting discrimination against transgender individuals in employment, housing, education, and credit. The new law also prohibits hate crimes against transgender persons.
The law, which is scheduled to take effect on July 1, 2012, establishes “gender identity” as a classification protected from discrimination and hate crimes. “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. 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 gender-related identity is sincerely held, as part of a person's core identity; provided however, gender-related identity shall not be asserted for any improper purpose.
The bill, as signed, does not apply to public accommodations, even though Massachusetts already outlaws discrimination in public accommodations based upon gender, sexual orientation, and other protected classifications. Reportedly, a section on public accommodations was dropped from the bill in response to opposition by Republican legislators who objected to the provision on the grounds that it could be applied to single-gender facilities like rest rooms and locker rooms.
The deletion of the public-accommodations section of the bill seems likely to stir confusion and controversy about application of the law. The business community will have to wait for guidance from the Massachusetts Commission Against Discrimination, the Attorney General, and the courts as to how the law will be applied and enforced. In the meantime, however, it may be wise for employers to amend their nondiscrimination policies to include sexual identity as a protected classification.