Question of the Month

May 2017

Question
In your area, how are transgender people covered by existing sex discrimination laws?
Answer from Ohio

Not applicable in Ohio.

For more information please contact Emily Gelhaus at ejg@drgfirm.com

*Disclaimer: All answers to the Question of the Month are current the day on which they are posted. After this date, the information may subsequently change as a result of laws or rulings. For the most current information, please contact the responding lawyer for each state in which you are interested.

Answer from Missouri

There are no Missouri cases on point. The Missouri Human Rights Act does not expressly include transgender people.

For more information please contact Stephen Maule at maule@mcmahonberger.com

*Disclaimer: All answers to the Question of the Month are current the day on which they are posted. After this date, the information may subsequently change as a result of laws or rulings. For the most current information, please contact the responding lawyer for each state in which you are interested.

Answer from Massachusetts

Massachusetts explicitly protects against employment discrimination based on gender identity.  M.G.L. C. 151B. “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.

For more information please contact Marylou Fabbo at mfabbo@skoler-abbott.com

*Disclaimer: All answers to the Question of the Month are current the day on which they are posted. After this date, the information may subsequently change as a result of laws or rulings. For the most current information, please contact the responding lawyer for each state in which you are interested.

Answer from Maryland

Gender identity is specifically covered by our state anti-discrimination law.

For more information please contact Fiona Ong at fwo@shawe.com

*Disclaimer: All answers to the Question of the Month are current the day on which they are posted. After this date, the information may subsequently change as a result of laws or rulings. For the most current information, please contact the responding lawyer for each state in which you are interested.

Answer from California

Discrimination on the basis of sex protects all individuals from sex discrimination—not just females. (Government Code section 11029.) • Gender identity, gender expression, and transgender status are expressly protected. (Government Code section sections 11029, 11035.)

For more information please contact Erin Winters at ewinters@fosteremploymentlaw.com

*Disclaimer: All answers to the Question of the Month are current the day on which they are posted. After this date, the information may subsequently change as a result of laws or rulings. For the most current information, please contact the responding lawyer for each state in which you are interested.

Answer from Nevada

Effective October 1, 2011, NRS 613.330 was amended to prohibit discrimination based on gender identity or expression of a person, primarily intended to extend protections to and prohibit discrimination against transgender employees.  NRS 613.310 defines “gender identity or expression” as a gender-related identity, appearance, expression or behavior of a person, regardless of the person’s assigned sex at birth.

NRS 613.330 specifically makes it unlawful for an employer to refuse to hire or to discharge any person, or otherwise to discriminate against any person with respect to the person’s compensation, terms, conditions or privileges of employment, because of his or her gender identity or expression.

For more information please contact Scott Abbott at SAbbott@kzalaw.com

*Disclaimer: All answers to the Question of the Month are current the day on which they are posted. After this date, the information may subsequently change as a result of laws or rulings. For the most current information, please contact the responding lawyer for each state in which you are interested.

Answer from Michigan

No existing Michigan law currently addresses transgender people, although bills have been introduced in the legislature regarding transgender students.

For more information please contact Bill Pilchak at wpilchak@mi-worklaw.com

*Disclaimer: All answers to the Question of the Month are current the day on which they are posted. After this date, the information may subsequently change as a result of laws or rulings. For the most current information, please contact the responding lawyer for each state in which you are interested.

Answer from Minnesota

The Minnesota Human Rights Act prohibits discrimination in employment, housing, education, public accommodations, and other areas based on “sexual orientation,” which includes “gender identity” or “gender expression.”

See http://mn.gov/mdhr/yourrights/PDF/02yourRights_ENG.pdf (“Sexual Orientation: whether someone is — or are thought to be — gay, lesbian, straight, bisexual  or transgender.”

For more information please contact Doug Seaton at dseaton@seatonlaw.com

*Disclaimer: All answers to the Question of the Month are current the day on which they are posted. After this date, the information may subsequently change as a result of laws or rulings. For the most current information, please contact the responding lawyer for each state in which you are interested.

Answer from New York

Transgender individuals are protected from discrimination under both New York City and New York State Law.  The New York City Human Rights Law prohibits discrimination on the basis of gender, which includes an individual’s “gender identity, self-image, appearance, behavior or expression, whether or not that gender identity, self-image, appearance, behavior or expression is different from that traditionally associated with the legal sex assigned to that person at birth.”  Under recently enacted New York State Regulations, discrimination on the basis of gender identity, meaning “having or being perceived as having a gender identity, self-image, appearance, behavior or expression whether or not that gender identity, self-image, appearance, behavior or expression is different from that traditionally associated with the sex assigned to that person at birth”, is considered sex discrimination.  Additionally, under these regulations, discrimination on the basis of gender dysphoria, defined as “a recognized medical condition related to an individual having a gender identity different from the sex assigned at birth”, is considered disability discrimination.  Therefore, individuals with gender dysphoria are entitled to a reasonable accommodation under the New York State Human Rights Law.

For more information please contact John Keil at jkeil@cfk-law.com

*Disclaimer: All answers to the Question of the Month are current the day on which they are posted. After this date, the information may subsequently change as a result of laws or rulings. For the most current information, please contact the responding lawyer for each state in which you are interested.

Answer from North Carolina

Transgendered people are not a separate protected class in North Carolina. As of 2016, there are lawsuits pending to determine whether discrimination against transgendered people is a form of sex discrimination.

For more information please contact Steve Dunn at steve.dunn@vradlaw.com

*Disclaimer: All answers to the Question of the Month are current the day on which they are posted. After this date, the information may subsequently change as a result of laws or rulings. For the most current information, please contact the responding lawyer for each state in which you are interested.

Answer from Wisconsin

Wisconsin statutes prohibit discrimination based on sex or sexual orientation in three areas—employment, housing and public accommodation— but do not extend these protections to transgender individuals.

For more information please contact Laurie Petersen at LPetersen@lindner-marsack.com

*Disclaimer: All answers to the Question of the Month are current the day on which they are posted. After this date, the information may subsequently change as a result of laws or rulings. For the most current information, please contact the responding lawyer for each state in which you are interested.

Answer from Alabama

In Alabama there are no state sex discrimination laws.

For more information please contact David Middlebrooks at dmiddlebrooks@lehrmiddlebrooks.com

*Disclaimer: All answers to the Question of the Month are current the day on which they are posted. After this date, the information may subsequently change as a result of laws or rulings. For the most current information, please contact the responding lawyer for each state in which you are interested.

Answer from Florida

There is no statewide protection for transgender people under the Florida Civil Rights Act. However, many counties and cities have laws governing the protection of transgender individuals. Please check your local laws for employer’s responsibilities to transgender individuals.

For more information please contact Wayne Helsby at WHelsby@anblaw.com

*Disclaimer: All answers to the Question of the Month are current the day on which they are posted. After this date, the information may subsequently change as a result of laws or rulings. For the most current information, please contact the responding lawyer for each state in which you are interested.

Answer from Oregon

The state of Oregon prohibits discrimination on the basis of sex and sexual orientation.  ORS 659A.030

Under the Oregon Administrative Rules, sex means “the anatomical, physiological and genetic characteristics associated with being male or female.”  OAR 839-005-0003(15).  Sexual orientation is defined as: “an individual’s actual or perceived heterosexuality, homosexuality, bisexuality or gender identity, regardless of whether the individual’s gender identity, appearance, expression or behavior differs from that traditionally associated with the individual’s sex at birth.” OAR 839-005-0003(16). 

Oregon’s Bureau of Labor and Industries has interpreted “gender identity” to mean “an individual’s gender-related identity, whether or not that identity is different from that traditionally associated with the individual’s assigned sex at birth, including, but not limited to, a gender identity that is transgender or androgynous” OAR 839-005-0003(9) and “gender expression” to mean “the manner in which an individual’s gender identity is expressed, including, but not limited to, through dress, appearance, manner or speech, whether or not that expression is different from that traditionally associated with the individual’s assigned sex at birth.”   OAR 839-005-0003(8).

The law provides a dress code or policy exception, so long as the dress code provides, on a case-by-case basis, reasonable accommodation based on the “health and safety needs of the individual.” The exception does not excuse a failure to provide all persons access to restrooms consistent with their expressed gender.

For more information please contact Megan J. Crowhurst at mcrowhurst@bullardlaw.com

*Disclaimer: All answers to the Question of the Month are current the day on which they are posted. After this date, the information may subsequently change as a result of laws or rulings. For the most current information, please contact the responding lawyer for each state in which you are interested.

Answer from Hawaii

Hawaii’s employment discrimination statute, Haw. Rev. Stat. ch. 378 pt. I, includes “gender identity or expression” as a protected category.  Unfortunately, the agency that enforces the statute, the Hawai`i Civil Rights Commission (“HCRC”), has not issued any regulations or formal guidance for employers with respect to implementation and enforcement of the statute.

For more information please contact Sarah Wang at SWang@marrjones.com

*Disclaimer: All answers to the Question of the Month are current the day on which they are posted. After this date, the information may subsequently change as a result of laws or rulings. For the most current information, please contact the responding lawyer for each state in which you are interested.

Answer from Pennsylvania

To date, there are no cases recognizing transgendered individuals as being covered by the Pennsylvania Human Relations Act. However, there is some limited authority to support that a transgendered individual may pursue a discrimination claim based on sex stereotyping. See Mitchell v. Axcan Scandipharm, Inc., 2006 U.S. Dist. LEXIS 6521 (W.D. Pa. Feb. 17, 2006). Several counties and municipalities, including Philadelphia, Pittsburgh, Scranton, and Allentown have passed ordinances providing employment discrimination protections to individuals based on sexual orientation and transgender status.

For more information please contact John Ellis at jellis@ufberglaw.com

*Disclaimer: All answers to the Question of the Month are current the day on which they are posted. After this date, the information may subsequently change as a result of laws or rulings. For the most current information, please contact the responding lawyer for each state in which you are interested.

Answer from Virginia

There is no law in Virginia prohibiting discrimination against transgender people by private employers.  (The Virginia Human Rights Act does not protect against discrimination based on sexual orientation or gender identity; the city of Alexandria, Virginia  and Arlington County, Virginia both protect against discrimination by private employers based on sexual orientation, but not gender identity.)  In January 2014, Virginia Governor Terry McAuliffe signed Executive Order Number 1 that prohibits discrimination based on sexual orientation or gender identity against state employees.

For more information please contact Susan Carnell at scarnell@lorengercarnell.com

*Disclaimer: All answers to the Question of the Month are current the day on which they are posted. After this date, the information may subsequently change as a result of laws or rulings. For the most current information, please contact the responding lawyer for each state in which you are interested.

Answer from Washington

Yes, the Washington Law Against Discrimination, RCW 49.60, protects individuals based on gender expression or identity, which includes transgender status.  Several cities (e.g., Olympia, Seattle, Tacoma) as well as King County bar discrimination on this basis as well.

For more information please contact Ken Diamond at ken@winterbauerdiamond.com

*Disclaimer: All answers to the Question of the Month are current the day on which they are posted. After this date, the information may subsequently change as a result of laws or rulings. For the most current information, please contact the responding lawyer for each state in which you are interested.

Tweets Follow

Nov 17

New York City Expands Sick Leave to Victims of Domestic Violence. https://t.co/DCZGWhQToi

Nov 17

RT @SkolerAbbott: What Can Employers in Massachusetts Learn from the Recent Sexual Harassment Scandals? https://t.co/sVfyYgvlKc

Nov 16

New #SHRM Federal Court Report: Overtime Averaging in Ontario: No Notice but No Harm, No Foul. https://t.co/MwIEAcl9Xr