New Massachusetts Amendments Related to Gender Identity Discrimination Go Into Effect October 1: What Massachusetts Employers Should Know

The Massachusetts Legislature recently amended the General Laws of Massachusetts, Chapter 272 (M.G.L. ch. 272), to prohibit discrimination in places of public accommodation based on an individual’s gender identity. The amendments become effective October 1, 2016.

As a reminder, M.G.L. ch. 151B, which the Massachusetts Commission Against Discrimination (MCAD) enforces, already prohibits discrimination in employment, housing, lending, credit, and mortgage services based on an individual’s gender identity.  However, the amendments to M.G.L. ch. 272 now specifically prohibit discriminating against or otherwise denying a person services in a place of public accommodation based on that person’s gender identity. On September 1, 2016, the Massachusetts Attorney General’s Office and the MCAD both issued guidance on the amendment.

The MCAD’s Guidance

The guidance, which now specifically includes a section on public accommodations, replaces its December 2015 Transgender Law Advisory. The MCAD guidance reminds businesses that the definition of “public accommodation” is broad and includes a “wide variety of private and public places, such as retail stores, restaurants, malls, public agencies, public parks, beaches and public roads.” The MCAD advises that service businesses are also covered under the law, including, but not limited to, “loan companies, cab services, and insurance companies, companies that provide long term disability benefits, and businesses that actively provide testing services.” The MCAD guidance offers insight into the use of public restrooms, locker rooms, and other changing rooms, and provides examples of discrimination in public places such as:

• a restaurant refusing to seat a group of transgender patrons on the grounds that “this is a quiet restaurant” and “you will draw too much attention from our other patrons”;
• a hotel refusing to host a conference of transgender individuals;
• a bakery refusing to bake a wedding cake for a customer because of the customer’s gender identity; and
• a stationery store refusing to print wedding invitations for a customer because of the customer’s gender identity.

The MCAD has also updated its existing guidance on discrimination in employment, housing, lending, and credit and mortgage services. In addition, it has reiterated best practices for employers, housing providers, places of public accommodation, and all other entities covered under the law.

Finally, the MCAD guidance notes that in most cases, it will not be appropriate to request documentation of an individual’s gender identity. However, when it is necessary to determine an individual’s gender identity for evidentiary purposes, the MCAD guidance states that “an individual’s gender identity may be demonstrated by any evidence that the gender identity is sincerely held as a part of the individual’s core identity.” The evidence the MCAD will review includes, but is not limited to, “medical history, medical/psychiatric care or treatment of the gender-related identity; consistent and uniform assertion of the gender-related identity or any other evidence that one’s gender-related identity is sincerely held as a part of one’s core identity; provided, however, that gender-related identity shall not be asserted for any improper purpose.” (Emphasis in the original.)

While acceptable evidence may include sworn statements or medical records from healthcare providers that are or were involved in the treatment or transition of the individual seeking, in the process of, or who has completed gender transition, evidence may also include, among other things, sworn statements from the individual or witnesses related to the individual’s sincerely held core gender-related identity, or the complainant’s routine activities and conduct such as dress, grooming, actions, and use of gender pronouns.

The Massachusetts Attorney General’s Guidance

Gender Identity Guidance for Public Accommodations, issued by the Massachusetts Attorney General’s Office (AG), provides definitions for “gender identity,” “transgender,” and “public accommodations.” It also provides general information about obligations under the law and examples of prohibited conduct constituting discrimination, such as

• refusing or denying service;
• offering a different or inferior class or quality of service or a more limited set of products, goods, services or facilities than are available to others;
• advertising or otherwise publicizing that [a place of public accommodation] does not accept business from, or the patronage of, transgender or gender non-conforming individuals; and
• providing false information about the availability of products, goods, services, facilities, or admission; and
• harassment and intimidation.

The AG’s guidance also offers detailed content regarding the use of sex-segregated facilities (e.g., bathrooms and locker rooms), including how a business should address complaints about a transgender person using a sex-segregated facility such as a restroom. The AG states that misuse of sex-segregated facilities is exceedingly rare. As a consequence, in most circumstances, the AG recommends that “a place of public accommodation should presume that an individual is using the appropriate facility.” However, the guidance also includes advice on what to do if a business has a legitimate reason to believe that an individual is not using the appropriate sex-segregated facility.

Finally, the AG’s guidance offers information on instances in which there is a legitimate reason to believe an individual is asserting gender identity for an unlawful or otherwise improper use, and it provides the following examples: loitering in a facility for the purpose of observing other patrons; harassment of an employee or patron; threats or violence towards another person; photographing or videotaping other patrons without permission; or other violations of existing law, including criminal law.

Though Massachusetts employers were already prohibited from discriminating against applicants and employees based on their gender identity prior to the recent amendments, employers are advised to be prepared to respond to employee questions and concerns regarding the amendments’ implementation and how they may affect the workplace given the significant media attention the amendments have received. Provided employers have been following the state’s antidiscrimination laws since gender identity became a protected class in 2011, there should be little to no noticeable change in the workplace.