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Section Review

Legal protections for transgender people

Andrew was hired recently by a local town police force.1 He was a decorated officer who had moved to the local community to be closer to family after having served on the state force in another state for 20 years. He retired there and had not intended to get back into the police service again. But the local community he lived in was under-staffed, and after striking up a conversation with the chief of police one day at a local pub, decided to start working part time. The chief was enthusiastic as it had been hard to recruit highly qualified officers. Andrew required little training and started on the force within two weeks of the initial interview. He was highly regarded and fit in well.

However, less than six months after he was hired, Andrew noticed that things started to change. He was issued defective equipment. The dispatcher often gave him inaccurate directions or the radio signal inexplicably faded during calls. Other officers stopped talking when Andrew entered the room and stopped inviting him to social events. Andrew feared he had lost his abilities as an officer. To be sure, he was older than when he had earlier served, but he could not understand how so much could have changed in just six months. The pattern of disregard for him at work intensified, as did his reaction to it. He developed insomnia, had a resurgence of panic attacks (that had begun as a result of a shooting incident during his former service), and began to develop severe physical abdominal pains for which he sought treatment. His home life suffered. His temper shortened and he was quick to snap at his wife and daughter.

About three weeks after the chief who hired him left to take a position in another community, Andrew received a call from him. His former boss called to tell him that there was a reason for the treatment he had begun to receive. The former chief explained that someone had done a computer search and learned that Andrew is transsexual. While born genetically female, Andrew has always had a male gender identity. In order to conform his outward appearance to that of his sense of who he has always been, Andrew went through a course of medical treatment to transition from female to male. His co-workers had such stereotypes about how people should look and act, and such raw prejudice against transgender people, that they had gotten together and decided to work collectively to run Andrew off the force. Their plan worked. The treatment Andrew faced was so severe that he simply could not do his job, and he left the force. After receiving the information from the former police chief, Andrew decided to pursue legal recourse.

Sadly, Andrew’s experience is far from unique. For many people who do not fit their co-workers’ or society’s views of what a “real man” or “real woman” should look or act like, this kind of discrimination is all too real and pervasive.2 Many transgender people – including those, like Andrew, who transition, and those who do not but continue for a variety of reasons to defy expectations of “appropriate” gender roles – face rampant discrimination in employment, public accommodations, housing, credit and education. Amongst other damaging repercussions, this discrimination results in chronic unemployment and underemployment amongst transgender people.

Though data collection on the subject is scarce, the available statistics confirm the troubling reality suggested by Andrew’s story. In one survey of transgender people in San Francisco, almost half of the respondents reported experiencing discrimination by their employer or co-workers, 64 percent reported earning under $25,000 per year, and 79 percent reported earning under $50,000 per year.3 Further, this discrimination transcends the employment arena. Over one third of the transgender people responding to the San Francisco survey reported being discriminated against at a place of public accommodation, and according to one national survey, nearly 75 percent of transgender students feel unsafe at school because of their gender expression.4 Additionally, for many transgender people, different treatment extends beyond discrimination into acts of violence perpetrated against them. One of the most widely known incidents of anti-transgender violence stems from the case of Brandon Teena, a transgender person who was assaulted, raped and ultimately murdered by friends associated with his social circle when they learned of his transgender identity.

In response to this widespread discrimination and violence, many states and localities have begun to enact statutes clarifying the scope of legal protections for transgender people. Nine states—California, Connecticut, Hawaii, Maryland, Minnesota, Missouri, New Mexico, Pennsylvania and Vermont5—and the District of Columbia,6 have amended their hate crimes laws to make clear that crimes motivated by bias against the victim’s gender identity or expression constitute hate crimes. Additionally, nine states—California, Hawaii, Illinois, Maine, Minnesota, New Jersey, New Mexico, Rhode Island and Washington7—and the District of Columbia,8 and more than 80 cities and counties from geographically diverse regions of the country,9 have amended their nondiscrimination statutes to be explicitly inclusive of transgender people.

Of these statewide nondiscrimination laws, five were enacted in the last two years. Indeed, a growing number of employers and professional associations have recognized the importance of codifying explicit legal protections for transgender people. Last summer, the American Bar Association issued a recommendation calling on federal, state, local and territorial governments to pass laws prohibiting discrimination on the basis of gender identity or expression in employment, housing and public accommodations.10

In Massachusetts, although the cities of Boston, Cambridge and Northampton have enacted transgender-inclusive nondiscrimination ordinances, no explicit statewide protections exist for transgender people. This does not mean that transgender individuals in the commonwealth have no legal protections against discrimination. The Massachusetts Commission Against Discrimination and the Massachusetts Superior Court have ruled that transgender people are protected by existing prohibitions against sex and disability discrimination.11 Although not without exception,12 most courts across the country that have recently considered whether transgender people are covered by existing law have said that they are.13

Nonetheless, even in jurisdictions like Massachusetts with positive case law, explicit statutory protection is crucial for transgender people. Adding “gender identity or expression” to nondiscrimination and hate crimes laws puts stakeholders, such as employers, landlords, educators and transgender people themselves, on notice of their rights and responsibilities. Doing so reduces liability for employers by clarifying their obligations and simultaneously ensures that transgender people know their rights. Additionally, a clear law makes a strong public policy statement that discrimination against transgender people is wrong and is not tolerated in the commonwealth.

Recognizing the importance of explicit inclusion for transgender people within the General Laws, state Representatives Carl Sciortino and Byron Rushing introduced House Bill 1722, An Act Relative to Gender-Based Discrimination and Hate Crimes, this legislative session. In addition to its two lead sponsors, the bill currently has 21 co-sponsors in the House and Senate. HB 1722 amends G.L. c. 151B and G.L. c. 272, §§92A, 98 to explicitly prohibit discrimination based on gender identity or expression in employment, housing, credit and public accommodations. The bill also amends those statutes prohibiting discrimination in public education, and G.L. c. 22C, §32 and G.L. c. 265, §39, the state’s hate crimes laws. Following the ABA’s recommendation, the MBA House of Delegates voted unanimously at its meeting on March 1, 2007, to endorse HB 1722.

In Connecticut14 and Vermont,15 bills that would provide explicit protection against discrimination for transgender people are well on their way to becoming law. At the federal level, the Local Law Enforcement Hate Crimes Prevention Act of 2007, which permits the Justice Department to investigate and prosecute crimes motivated by inter alia, the victim’s gender identity, was recently introduced in the House and Senate.16 And the Employment Non-Discrimination Act of 2007, which prohibits discrimination in employment on the basis of sexual orientation and gender identity, was introduced in the House on April 24.17

As Andrew’s experience demonstrates, the pervasive discrimination faced by transgender people in many areas of their lives is emotionally, financially, and often physically, devastating. The introduction of HB 1722 in Massachusetts is an important step toward ending the discrimination and hate-based violence experienced by transgender individuals in the commonwealth. Its adoption will provide key legal protections for transgender people and make a strong public statement.


End notes

1. This example, while fictional, is based upon a real incident.

2. “Transgender” is an umbrella term that encompasses all people whose gender identities and expressions challenge traditional notions of how men and women should appear and behave. Transgender people include, for example, transsexual and genderqueer individuals and all who are gender nonconforming.

3. SHANNON MINTER & CHRISTOPHER DALEY, TRANS REALITIES: A LEGAL NEEDS ASSESSMENT OF SAN FRANCISCO’S TRANSGENDER COMMUNITIES (2003), available at nclrights.org/publications/pubs/transrealities0803.pdf.

4. JOSPEH G. KOSCIW & ELIZABETH M. DIAZ, THE 2005 NATIONAL SCHOOL CLIMATE SURVEY: THE
EXPERIENCES OF LESBIAN, GAY, BISEXUAL AND TRANSGENDER YOUTH IN OUR NATION’S SCHOOLS,
52 (2006).

5. CAL. PENAL CODE §§ 422.55, 422.56 (2006); CONN. GEN. STAT. §§ 53a-181i (2007); HAW. REV. STAT. § 706-662(6) (2006); MD. CODE ANN. [CRIM. LAW] § 10-301 (2006); MINN. STAT. §§ 363A.03 (44), 609.2231(4), 609.595(1a), 611A.79 (2006); MO. REV. STAT. § 557.035 (2006); N.M. STAT. §§ 31-18B-2, 31-18B-3 (2006); 18 PA. CONS. STAT. ANN. § 2710 (West 2006); VT. STAT. ANN. tit. 13, § 1455 (2006).

6. D.C. CODE §§ 2-1401.02, 22-3701 (2006).

7. CAL. GOV’T CODE § 12940 (West 2005); CAL. PENAL CODE § 422.56 (West 2005); CAL. WELF. & INST. §§ 16003, 16013 (West 2005); HAW. REV. STAT. §§ 489-2–489-3, 515-2–515-7 (2006); 775 ILL. COMP. STAT. 5/1-101 (2005); ME. REV. STAT. ANN. tit. 5, § 4551 (2005); MINN. STAT. § 363A.01 (2005); N.J. STAT. ANN. §§ 10:2-1, 10:5-1 (2006); N.M. STAT. § 28-1-1 (2005); R.I. GEN. LAWS §§ 11–24–2, 28–5–2, 34–37–1 (2004); WASH. REV. CODE § 49.60.010 (2006). In Iowa and Oregon, similar statutes have passed both houses and are awaiting the governor’s signature. See SF 427 (Iowa 2007); SB 2 (Or. 2007).

8. D.C. CODE §§2-1401.01, 02; 2-1402.11, 21, 31, 41, 71, 73 (2006).

9. These localities include, for example, major cities such as Cincinnati, Dallas, Denver, Los Angeles, New Orleans, New York and Seattle, and smaller cities and towns such as Bend, Oregon, York, Pennsylvania, Louisville, Kentucky, and Rochester, New York. For a list of all the cities and counties with transgender-inclusive nondiscrimination laws, see Transgender Law & Policy Institute, U.S. Jurisdictions with laws prohibiting discrimination on the basis of gender identity or expression, http://www.transgenderlaw.org/ ndlaws/index.htm (last edited Dec. 17, 2006).

10. AMERICAN BAR ASSOCIATION RESOLUTION 122B, http://www.abanet.org/leadership/2006/annual/
dailyjournal/hundredtwentytwob.doc. Adopted by the House of Delegates Aug. 7–8. 2006. See Sexual Orientation and Gender Indentity Policies – ABA Section of Individual Rights and Responsibilites, http://www.abanet.org/irr/policies/committees/sexualorientpolicies.html.

11. See Lie v. Sky Pub. Corp., 15 Mass. L. Rpt. 412, 8 (Super. Ct. 2002); Jette v. Honey Farms Mini Mkt., 2001 WL 1602799, 1 (Mass. Comm’n Against Discrimination); Millett v. Lutco, 2001 WL 1602800, 3 (2001) (Mass. Comm’n Against Discrimination).

12. See, e.g., Etsitty v. Utah Transit Auth., 2005 WL 155610 (D. Utah) (appeal pending in 10th Cir.).

13. See, e.g., Smith v. City of Salem, Ohio, 378 F.3d 566, 578 (6th Cir. 2004); Rosa v. Park West Bank & Trust Co., 214 F.3d 213, 215 (1st Cir. 2000); Schroer v. Billington, 424 F.Supp.2d 203, 213 (D.D.C.); Lie, 15 Mass. L. Rptr. 412; Maffei v. Kolaeton Indus., Inc., 164 Misc.2d 547, 556, 626 N.Y.S.2d 391 (N.Y. Sup. 1995).

14. S.B. 1044 Conn. Gen. Assem., Reg. Sess. (Conn. 2007).

15. 2007 Vermont Laws No. 41 (S. 51), Gen. Assem., 69th Bennial Sess. (Vt. 2007).

16. H.R. 1592, 110th Cong. (2007).

17. H.R. 2015, 110th Cong. (2007).

©2014 Massachusetts Bar Association