On Nov. 16, 2011, the Massachusetts Legislature passed a bill to
protect transgender people in Massachusetts from discrimination in
employment, housing, mortgage loans and credit.1 The
House enacted the bill by a vote of 93-60, and the Senate passed
the bill on a voice vote on the last day of the legislative
session. Gov. Deval Patrick signed the bill Nov. 23, which would go
into effect on July 1, 2012.
The bill, entitled, An Act Relative to Gender Identity, amends the
commonwealth's non-discrimination laws to include "gender identity"
as a new protected category. 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."2
Pursuant to the language of the bill, evidence of a person's
gender identity may include "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 person's
gender-related identity is sincerely held, as part of the person's
core identity."3 The list of potential evidence of a
person's gender identity is not meant to be exhaustive, and the
bill expressly accounts for the possibility that there may be other
sources of information sufficient to establish an employee's gender
Proponents of the bill spent six years lobbying Beacon Hill for
its passage and consider it a major victory for the lesbian, gay,
bisexual and transgender (LGBT) community, which is said to include
more than 33,000 transgender individuals across the state.
However, the legislation is not a total victory for transgender
rights advocates because it fails to protect transgender people in
public accommodations, such as hotels, restaurants and clubs.
Proposals to include public accommodations language in the bill
were rejected after opponents dubbed it "the bathroom bill." If
public accommodations were included in the bill, critics argued, it
would allow biological males to gain access to women's restrooms,
locker rooms and other changing areas -- an outcome some in the
Legislature found unacceptable.
In what may have been a nod to opponents of the public
accommodations proposal, the bill provides the following caveat:
while transgender people may not be discriminated against on the
basis of their gender identity, at the same time, they may not
assert their gender identity "for any improper
purpose."5 Although the bill does not specify what such
an "improper purpose" might be, this provision may allude to the
contentious bathroom issue.
The bathroom question has already been addressed by some courts.
In the landmark case of Cruzan v. Special Sch. Dist.,
#1,6 the U.S. Circuit Court of Appeals for the 8th
Circuit ruled in favor of allowing transgender employees to use the
bathroom that best matches their new presentation.
In Cruzan, David Nielsen had been teaching in the Minneapolis
public schools for 30 years when he informed administrators that he
was transgender and wanted to transition his biological sex from
male to female.7 The school worked with Nielsen during
the transition, meeting with parent groups, psychologists and legal
counsel to prepare for the change.8 Upon Nielsen's new
presentation as a woman named Debra Davis, the school allowed Davis
to use the women's faculty restroom.9
The Cruzan case was brought by another female teacher, named Carla
Cruzan, who claimed she was uncomfortable sharing a restroom with
Davis.10 Cruzan filed claims for religious
discrimination, sex discrimination and hostile work environment on
the grounds that the school had improperly allowed Davis to use the
women's faculty restroom.11
The 8th Circuit upheld the decision of the U.S. District Court of
Minnesota, finding that the school had acted reasonably in
accommodating Davis with access to the women's faculty restroom and
noting that Cruzan was provided with several reasonable
alternatives, including use of the student female restroom near her
classroom and several single-stall unisex bathrooms located
throughout the building.12 On those facts, the court
found that the school's decision to allow a transgender employee
use of the women's faculty restroom did not rise to the level of an
actionable adverse employment action against the
Of course, not every workplace can accommodate employees with
different types of bathrooms or single-stall, unisex options.
Whichever type of bathroom may be available in the workplace,
Occupational Safety and Health Administration (OSHA) regulations
require that employees have unrestricted access to a convenient
restroom (generally less than a one-quarter mile walk from their
assigned work station).14
While a growing number of states now protect transgender people
against discrimination in employment and/or public accommodations,
there is still no federal law that recognizes gender identity as a
protected category. However, in recent years, the 1st, 6th and 9th
Circuit Courts of Appeal have each held that transgender people are
protected by existing federal sex discrimination
The ways in which states define gender identity and the scope of
protection offered to people who fall within those definitions vary
from state to state and statute by statute. Massachusetts now joins
13 other states that provide some level of protection for
transgender employees: California, Colorado, Connecticut, Illinois,
Iowa, Maine, Minnesota, New Jersey, New Mexico, Oregon, Rhode
Island, Vermont and Washington. Many local municipalities have also
passed ordinances relative to gender identity. As always, it is
important for employers confronted with employment issues to check
their local laws for applicable guidance.
Dana L. Fleming is an associate in the Boston office of
Seyfarth Shaw. She has significant experience in defending
employers against all types of discrimination, harassment and
complex wage and hour claims, and in providing employer counseling
and advice on a variety of topics, including FMLA and reductions in
1The bill also extends protection to transgender people
under existing hate crimes laws. H.B. 3810, 187 Gen. Ct. (Mass.
6294 F.3d 981 (8th Cir. 2002).
7Id. at 983.
12Id. at 983, 984.
13On appeal, Cruzan argued - quite creatively - that
the lower court had abused its power by allowing a male judge to
decide that reasonable women would not find sharing bathroom
facilities with a co-worker who self-identifies as female, but who
may be biologically male, sufficient to create a hostile or abusive
work environment. The 8th Circuit found her argument unpersuasive,
noting that judges routinely decide hostile environment and sexual
harassment cases involving plaintiffs of the opposite sex. Cruzan
v. Special Sch. Dist., #1, 294 F.3d 981, 984 (8th Cir. 2002).
14See 29 C.F.R § 1910.141(c)(1)(i) (2011); Memorandum
from John B. Miles, Jr., Dir., Directorate of Compliance Program,
Occupational Safety & Health Admin. to Reg'l Adm'rs (Apr. 6,
1998) (interpreting 29 C.F.R. 1910.141(c)(1)(i)).
15See, e.g., Rosa v. Park W. Bank & Trust Co., 214
F.3d 213, 216 (1st Cir. 2000) (reinstating Equal Credit Opportunity
Act claim on behalf of transgender plaintiff who alleged that he
was denied opportunity to apply for loan because he was not dressed
in "masculine attire"); Schwenk v. Hartford, 204 F.3d 1187, 1202
(9th Cir. 2000) (holding that transsexual prisoner could state
claim under Gender Motivated Violence Act because sex
discrimination includes "[d]iscrimination because one fails to act
in the way expected of a man or woman"); Smith v. City of Salem,
378 F.3d 566, 575, 578 (6th Cir. 2004) (holding transsexual city
fire department employee stated valid sex discrimination claim
under either Title VII or Equal Protection Clause of 14th