With the new year, Massachusetts employers must add “gender identity” to the list of classes entitled to protection from employment discrimination and retaliation.   What was touted as the “transgender rights” law in Massachusetts is, in fact, a “gender identity” law. 

The Massachusetts transgender rights law 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.

This law allows employees to establish a workplace gender identity by providing their employer with 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.”

Notwithstanding this new law, the Massachusetts Commission Against Discrimination has already found that transgender employees are protected under the Commonwealth’s existing sex and disability discrimination laws.  Thus, we have long counseled Massachusetts employers to treat transgendered employees as a protected class, and we do not anticipate that this legislation will change that fundamental advice. 

What is new, however, and something that should be of great concern, is the potential reach of the statutory language.  Now, not only do transgender employees have explicit rights in Massachusetts, but, read literally, all individuals may have rights against discrimination and retaliation based on any gender-related behaviors, appearances, traits or stereotypes at all.  While we do not believe this to have been the intention of the legislation, don’t be surprised if more than one member of the plaintiffs’ bar pushes the courts for such an interpretation.

Because the new law does not become effective until  July, 2012, you still have several months to:

1. Review and update company policies and handbooks;
2. Train managers and supervisors as to how to identify and deal with claims of gender identity discrimination, harassment or retaliation; and
3. Implement policies to avoid gender-based comments that might violate the new law.  Since the law is not clear on whether it only protects transgender employees, managers and supervisors should be careful not to make any comments or decisions based on gender stereotypes or gender-based assumptions.

There are 16 other states which have some form of transgender protections, and many others where bills are currently pending.  Not all have the potentially broad language of the Massachusetts law.  But in all cases, employers should take steps as soon as possible to educate managers and supervisors to be aware of gender-based concerns and how to handle them.