Published on: February 14, 2012

On November 23, 2011, the Governor signed into law Chapter 199 of the Acts of 2011, adding “gender identity” as a protected class under the Commonwealth’s non-discrimination laws.  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.”

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 gender-related identity is sincerely held as part of a person’s core identity.”

The law, which becomes effective July 1, 2012, extends anti-discrimination protections under Massachusetts law to transgender persons in the areas of housing, education, employment, and credit.  It does not, however, protect transgender persons in places of public accommodation, such as hotels, restaurants and clubs.  Proposals to include public accommodations language were rejected after opponents, who dubbed it the “bathroom bill,” voiced concerns that it would allow biological males to gain access to women’s restrooms, locker rooms and other changing areas.

While the law does not allow transgender people to be discriminated against on the basis of their gender identity, neither does it allow them to assert their gender identity “for any improper purpose.”  The law does not define “improper purpose,” but it may be a veiled reference to the bathroom issue, which has already been addressed by some other courts.  For example, the U.S. Court of Appeals for the 8th Circuit ruled nearly a decade ago that transgender employees should be allowed to use the bathroom that best matches their new presentation.

In summary, effective July 1, 2012, the Commonwealth will join 13 other states that provide some level of protection for transgender employees.  As of that date, employer policies related to equal protection and sexual harassment should be revised accordingly.