New Prohibitions Against Transgender Discrimination Likely

A Transition in the Law

By Karina L. Schrengohst, Esq. and Jennifer Butler, Esq.

Discrimination based on transgender status or gender identity is a developing area of the law.

Recently, there has been considerable debate on the local, state, and national levels over access to bathrooms for transgender individuals. As the public debates this issue, legislators, administrative agencies, and courts are shaping the law that prohibits gender discrimination, including discrimination against transgender individuals.

In light of this, businesses that are open to the public should understand how to navigate through the legal landscape of an evolving area of discrimination law.

In 2012, with the passage of An Act Relative to Gender Identity (also known as the Transgender Equal Rights Bill), Massachusetts added gender identity as a protected class under the state’s anti-discrimination law, which 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.” Massachusetts law prohibits discrimination against an individual based on that individual’s gender identity, transgender status, or perceived nonconformity with gender stereotypes in the context of employment, housing, education, and credit.

Massachusetts public-accommodation law, however, currently does not explicitly prohibit discrimination based on gender identity or transgender status. Massachusetts law prohibits discrimination in a place of public accommodation based on race, color, national origin, ancestry, religious creed, sex, sexual orientation, and disability.

A place of public accommodation is essentially any place open to the general public. This includes, for instance, hotels, restaurants, bars, retail stores, theaters, sports stadiums, museums, libraries, parks, gyms, swimming pools, beaches, laundromats, gas stations, and public transportation. In other words, this means that, for example, it is unlawful for a restaurant to refuse service or a movie theater to refuse entry to an individual based on his or her gender.

Gender identity will likely soon be a protected class under Massachusetts public-accommodation law. In fact, a bill is now under review by the state Legislature that seeks to add the term ‘gender identity’ to the existing law to expressly prohibit discrimination against transgender individuals in the context of places of public accommodation. In addition, the proposal specifically aims to increase the scope of anti-discrimination law to explicitly grant transgender individuals access to public areas legally separated by gender, like bathrooms and locker rooms, consistent with their gender identity.

The proposed legislation has gained an increasing amount of support from the business community. Earlier this month, more than 40 businesses supporting the public-accommodations bill joined Attorney General Maura Healey in an open letter to lawmakers, urging them to take a favorable vote on the bill.

In the meantime, even in the absence of an explicit prohibition on discrimination based on gender identity, business owners should understand that denying access to transgender individuals could result in a lawsuit based on gender discrimination, which is explicitly prohibited by Massachusetts public-accommodation law.

In the employment context, federal law does not explicitly prohibit discrimination based on gender identity.  Despite this, federal courts and the Equal Employment Opportunity Commission have recognized that discrimination based on gender identity or transgender status is a form of unlawful gender discrimination. A lawsuit could similarly be brought in the context of public-accommodation law.

Because change is on the horizon, and considering the current trend of interpreting gender-discrimination law, to reduce the risk of litigation, business owners would be wise to take steps to ensure that their policies and practices do not deny access and otherwise discriminate against individuals based on gender identity, transgender status, or perceived non-conformity with gender stereotypes.

Additionally, as most places of public accommodation are subject to employment-discrimination law, business owners should educate their employees that discrimination based on gender identity is unlawful and will not be tolerated in the workplace. Because this is a developing area of the law, business owners should consult with counsel with any questions concerning transgender-discrimination law.

Karina L. Schrengohst, Esq. and Jennifer Butler, Esq. specialize exclusively in management-side labor and employment law at Royal, P.C., a woman-owned, boutique, management-side labor and employment law firm, which is certified as a women’s business enterprise with the Massachusetts Supplier Diversity Office, the National Association of Minority and Women Owned Law Firms, and the Women’s Business Enterprise National Council. Schrengohst can be reached at (413) 586-2288 or [email protected]. Butler can be reached at (413) 586-2288 or [email protected].